Legal Question in Wills and Trusts in North Carolina

In my will I want to leave some Household items to my children but not until after the death of my surviving spouse. How do I put that into a will or do I need a different type of document? This is a second marriage for us both and we both have children from those marriages but non together. I don't want our children coming and cleaning out the home while one of us is still living. If we both die at the same time no problem. Thank you

Asked on 9/12/14, 8:29 am

2 Answers from Attorneys

Then you want to leave your husband a life estate. With a life estate, your husband would have the right to use the property only and upon his death, the items would pass to your children as per the will. Most commonly, life estates are for land but there are life estates for personal property.

I would suggest that you reconsider your estate plan. Things like household furniture or household items (pots, pans & dishes) should just go to your husband. Things which are antiques or heirlooms or items of great sentimental value to you and your children really ought to be left with your children.

Another way to do this may be to create a handwritten memorandum which is attached to your will. In the handwritten memorandum you can elaborate on this. The handwritten memorandum is attached to your and made reference to in your will and your personal representative it is hoped will carry out your instructions. Understand though a handwritten memo does not carry the same weight as a will and is not legally enforceable against your personal representative.

I don't know if an attorney is drafting your and your husband's will. I would hope so and in such case the attorney would be worrying about this provision and how best to carry out your wishes. However, if you are trying to do this with a will kit, then I suggest that you stop and think about this - these kits are not for everyone and your post already indicates that you and your husband do not have a simple situation. If you do this on your own you are asking for trouble as you may be trying to save money and instead leave your husband and children an expensive lawsuit.

Wills are not all that expensive. In addition to a will (or possibly a revocable living trust under certain circumstances), you and your husband need financial and health care powers of attorney and living wills.

If you are interested in having estate plans done for you and/or your husband, please contact me at [email protected]

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Answered on 9/12/14, 10:31 am
Jeremy Canipe The Canipe Law Firm, PLLC

Thank you for your question. I certainly appreciate your concerns. Working with an experienced estate planning attorney to ensure that your estate plan and that of your husband are coordinated to accomplish the goals and preferences which each of you have. I agree with the other attorney's point that the relative cost of hiring an attorney to prepare comprehensive plans for you and your husband are well worth the investment.

The attorney's experience and knowledge will allow the attorney to ensure that the legal requirements for the enforceability of the will and other related documents (which are important in situations where you or your husband might remain living but be unable to make financial or medical decisions for yourselves). In both situations, having a written, legally sound set of documents can avoid unfortunate disagreements and disputes, as well as lengthy and very expensive lawsuits

I'd be glad to discuss these issues in more depth and assist you and/or your husband. You can contact me at [email protected]

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Answered on 9/12/14, 1:56 pm

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