Ask Liz Weston

Get smart with your money

Estate Planning

Q&A: How to divide up the family home

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Dear Liz: My wife and I plan to leave our house to our four children. My concern is that one may want to sell and split the proceeds; another may want to keep the house, rent it and divide up the income; and of course there’s always the real possibility that one may want to move in and live in it (we live in a nice community in California). My goal is to prevent doing anything that drives a wedge between them. Any advice on how best to approach this issue short of requiring the house be sold?

Answer: You’ve identified some of the complicating factors of leaving property to multiple heirs. There are many others, including changing circumstances and inclinations. The one who now wants to move into the property may be nicely settled elsewhere when the time comes. Or the one who’s keen on creating a rental may decide that screening tenants, collecting rent and fielding 3 a.m. calls about plumbing problems is too much hassle. Some of the heirs may be in a better position than others to absorb the ongoing costs of maintaining the home, including taxes, insurance and repairs. Even if their financial circumstances are roughly equal, they may have trouble agreeing on the timing and cost of repairs or improvements. And that’s assuming there are no reversals of fortune. Someone who is adamant about keeping the home may find themselves in need of funds later. And so on.

Your life isn’t immune to change either, by the way. You, or your widow, may want to downsize someday or need to sell the house to fund long-term care needs.

An experienced estate planning attorney can help you sort through your options because this is a common scenario and one that can be approached in different ways, including requiring the house to be sold, creating a trust or forming a family partnership to manage the property.

The attorney also can help you frame the discussion you’ll want to have with the kids. Knowing their current preferences and circumstances may be helpful, but given your goal, it’s also a good opportunity to emphasize the importance of family unity. Let your kids know you expect them to put family first and that harmonious relationships are worth more than any piece of real estate could be.

Q&A: The ins and outs of what counts for probate

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Dear Liz: The value of our car, furniture and personal items is well below the $185,000 that currently triggers probate in California. We no longer own real estate. Am I correct that investment and bank accounts that have designated beneficiaries do not count toward the probate limit?

Answer: Yes. (Your car doesn’t count either, by the way.)

Most states have simplified procedures for smaller estates. California’s limit, which is raised with inflation every three years, was set at $184,500 on April 1, 2022. What’s counted for probate purposes depends on state law, and California excludes cars, boats and mobile homes, as well as bank accounts owned by multiple people, property that transfers directly to a spouse and real estate outside California.

Other property that avoids probate includes life insurance proceeds, death benefits and accounts that have named beneficiaries. Real estate can avoid probate if it’s held in joint tenancy or is transferred using a transfer-on-death deed. Property in a living trust also avoids probate.

Q&A: Are living trusts a DIY project?

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Dear Liz: I have a living trust. I’ve also got family who have become estranged and priorities that have changed in terms of charities I’d like to benefit. Is there any way to set up a trust that allows me to make these changes without having to pay an attorney?

Answer: There are certainly do-it-yourself options for estate planning. But if you can afford to pay for expert help, why wouldn’t you? Estate planning is complicated, and the cost of making a mistake can be significant. That’s especially true if there are disgruntled family members who could challenge your estate plan.

The good news is that updating a living trust typically costs a lot less than setting it up in the first place. As mentioned in previous columns, you should consider having an attorney review your trust about every five years, and after major life changes.

Q&A: Property transfers trigger tax problem

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Dear Liz: I’m considering giving property (a condo) to my child through a quitclaim deed while I am still living. If she continues to live in the condo for two years after gaining possession, doesn’t she get a $250,000 capital gains exemption when she sells the property?

Answer: Yes, if she owns and lives in the home for at least two of the previous five years, she can exclude up to $250,000 of home sale profits from her income. However, her taxable gain would be based on your tax basis in the property: basically what you paid for the home, plus any qualifying improvements. Only if she inherits the home would the tax basis be updated to reflect its fair market value on the date of your death. Although taxes should never be the sole consideration for property transfers, the favorable step-up in basis may be a powerful incentive to hold off. Consider discussing your options with a tax pro.

Q&A: Update trusts after life changes

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Dear Liz: My wife and I have a trust created in California to distribute our assets to our children after our deaths. In 2017, we moved to Texas and had the trust updated by a Texas attorney to reflect some changes and any differences between Texas and California rules. We moved back to California in 2020. Do we need to update our trust documents again because of the relocation? Do we need to do it any time we move? The terms in the document are generally fine. I just don’t know if the change in residency requires an update to the document.

Answer: Your last move required updates. Why wouldn’t this one?

Any major life change, including a move to another state, should prompt a review of your estate documents. Such a review is a good idea anyway every five years or so, even if you think nothing has changed in your personal circumstances. Laws can change, or you may have different ideas about who your beneficiaries should be, or whom you want to make decisions for you should you become incapacitated.

People often think (or hope) estate planning can be a one-time process. But life and the law aren’t static, so estate plans need to evolve too.

Q&A: Don’t make handwritten will changes

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Dear Liz: I have a question about wills. Since circumstances change over time, is it permissible to make “pen and ink” changes to a will? For example, can I cross out a beneficiary that no longer applies and date and initial the cross out?

Answer: Think about how easy it would be for someone else to alter your will with a pen and a reasonable facsimile of your initials. Then you’ll understand why states typically require people to be a little more deliberate about changing their estate documents. Even when handwritten changes are allowed, they’re usually not advisable. Any money you save by not seeing an attorney could be spent many times over in legal fees, since handwritten changes would be susceptible to challenges in court. Is that what you really want for your heirs?

Small alterations to estate plans can be handled with properly drafted and witnessed documents known as codicils. But you’re often better off creating a new document and revoking the old one, especially when changing beneficiaries.