My boyfriend and I purchased a house together by paying 50/50. It is a suvivorship deed, clear and free. We are not planning to get married in the future. He has 2 children from previous marriage. I don't have children. I have a niece and a nephew. I want to leave them my asset to. If I die first, my boy friend will get the house. After he dies, his children will inherit our house? I want to leave half of the value of the house to my niece and nephew instead of all go to his family, just to be fair. And vice versa.
Should we have a living trust under both of our name instead of a suvivorship deed? If one dies first, the other one will continue to live in the house until passing. Then the house will be divided between his children and my nieces and nephew equally. Will the living trust the best way to ensure all of our heirs get the shares?
2 Answers from Attorneys
You are correct in your understanding of how a survivorship deed works, and of course if you were to pass first it is true the real estate would ultimately descend to whomever your boyfriend chooses in his estate plan, and if he did not make a plan, then to his legal heirs.
This outcome can be altered in a number of ways, the most basic of which would be to undo the survivorship quality of the title, by making a new deed where each of you own a 1/2 interest as "Tenants in Common." This would enable each of your 1/2 interests to descend according to your own separate estate plans. The potential drawback in this strategy is that the real estate title may ultimately be divided among different families or other parties that may not agree on the best use of the property or how to dispose of same.
A properly prepared living trust, which you mentioned, can accomplish your ultimate goals concerning the real estate, as well as other assets you may acquire in the future, with the added benefit that decision making power is normally concentrated in one person, known as the Trustee, so most pitfalls and stalemates can be readily avoided which ensures your wishes are carried out.
I would recommend that you have the entire situation reviewed with an experienced estate planning lawyer, so all options can be explained in detail and you can then make an informed decision.
My office is located in Westlake, near Crocker Park; if we can be of assistance, you can reach us at 440-899-7710.
In addtion to consider the issues that might arise if one of you passes away, you should consider what would happen if you were to split up. For couples who are not married this can be a difficult situation. You should have a written agreement that provides for an breakup, including dealing with any mortgage.
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