Vogel Law Firm, Ltd.: estate planning law firm serving families throughout the State of Wisconsin

Friday, August 21, 2009

To Deed or Not To Deed

For the last 15 years or so, adding the names of children to the deed to a parents' home has become commonplace. But, the fundamental question is whether this is a good idea legally. There is usually one reason that our clients want to deed their home to their children—they are afraid of nursing home costs and want to protect a valuable asset from being "taken" to pay for nursing home care. I don't blame anyone who has a healthy fear of nursing home costs. Depending upon the level of care needed, a nursing home will cost $6,000-$9,000 per month in the state of Wisconsin. OUCH! That's expensive and certainly creates some fear. To alleviate fear, a common suggestion from friends and many lawyers is to deed your real estate to your children to start the Medicaid five-year look-back period, but is this wise? We want to start the five-year look-back period, but should we really deed the house to the children?

Unfortunately, simply deeding your home or other real estate to your children is not a panacea. Yes, it will start the Medicaid five-year look-back clock ticking, but deeding property to your children comes with risk. Once the deed is done, your child or children now own a legal interest in your real estate. Often, you no longer own the real estate or you retain a life estate interest. The risk is your child's unknown financial future. If your child encounters debt issues, divorces, gets sued for money, or files bankruptcy, your home is placed in jeopardy. I recently assisted a client with the misery of paying a bankruptcy trustee a large sum of money to buy-back her daughter's interest in my client's home because her daughter's name was on the deed. This can be a nightmare!

What's the solution? People need lawyers who are creative thinkers. The solution is for a client to create an irrevocable trust to own the legal interest in your real estate that the client wants to give away. The client's children are the beneficiaries of the trust and the trust continues to exist until the client's death. If needed, the client may also continue to own a life estate (client keeps lifetime control) with the trust owning what is called a remainder interest in the real estate. Don't simply deed real estate to your children. You need greater protection. You need a properly drafted trust.

By: Michael W. Vogel

Give them peace of mind

In tough economic times, you may be tempted to put off estate planning because you view it as discretionary. Money is tight, so planning can be put on hold. Granted, choosing between buying food or creating a custom estate plan is not really a choice! Fortunately, even in these tough times, most people do not truly face that decision. Since you are reading this online (and haven't given up your DSL in exchange for survival), I will assume you are not one facing that decision, so please read on, this post is for you!

Death is inevitable. Failure to plan can add unnecessary stress and anxiety during a time when your family is already experiencing great pain and loss. A proper plan can assure that your wishes will be carried out, and it will provide a peaceful transition for your surviving family members.

If you have young children, planning cannot be put off. No one plans on dying and leaving their children behind. However, it does happen every day. When that unfortunate situation occurs, a guardian must be appointed by a court. This process takes time and money. If your plan names a guardian for your children, you can rest knowing that they will be taken care of as you desire. If you have no plan, your children are at the mercy of the court and your surviving relative. Even if you have a loving, close-knit family, leaving them with no plan to follow can leave the door ajar for contention and hurt as your family tries to decide who should care for your children. A plan will avoid unnecessary contention (which may prolong naming a guardian and be very costly – both emotionally and monetarily). A plan will provide you with peace of mind now. A plan will provide your surviving family with peace of mind that they are doing what you would want.

Even fame and fortune are no cure for the complacency that usually surrounds planning for death. If you recall former Tennessee Titan quarterback Steve McNair's death, he died without any plan in place. This forced his wife to deal with raising their children alone, as well as having to deal with the unnecessary headache of inheritance issues with children Steve had from a former relationship. With no guidance from a plan, Mrs. McNair is now forced to have the State of Tennessee dictate how Steve's estate should be distributed. A plan would have avoided this nightmare. A plan would have spelled out how the children (both from the marriage and from the other relationship) would have inherited. A plan would provide Mrs. McNair with peace of mind.

Death is inevitable. Tough economic times come and go. Proper planning now will ensure your plans – your legacy – will be carried out as you envision it now. Proper planning will give you and your family peace of mind, both now and after you are gone. Why wait? Your family deserves to be taken care of with a proper plan.