Question:
I need to make a new will since the one I have is almost 40 years old, and so much has changed since then. My concern is for my adult daughter, who is single, never married, and lives with me–she has always lived with me, and has no children. I’m a widow, my husband passed in 2003. At the time of my husband’s death I changed my back account to a joint one between my daughter and myself. The only thing in my name is our house, and that’s where I’m not sure what to do. Of course, my goal is to avoid probate and make things as easy for my daughter as possible. I’m an only child, so no brothers or sisters, and my daughter is the only one left.
Response:
It makes sense to execute a new will, mainly to name your daughter as your personal representative (or “executrix”) so that she will have authority to wrap everything up, including paying any bills and filing your last income tax return.
But your estate will not have to be probated if you change the ownership of your home to avoid probate. There are a few options: adding your daughter as joint tenant, creating a life estate through which she would become the owner upon your death, or transferring the house to a revocable trust. Each has certain advantages and disadvantages.
The main advantage of a trust over the other two options is that the house could be protected for your daughter in case she has any debts or might need to apply for public benefits, such as Medicaid, sometime in the future.
Otherwise, joint ownership or a life estate may be easier. But be aware that the transfer could make you ineligible for Medicaid benefits yourself for the following five years. On the other hand, depending on your state’s rules, both may protect the house from Medicaid estate recovery upon your death, which a revocable trust is unlikely to do. (Also, joint ownership usually does not make sense when there’s more than one child involved because the proliferation of owners on the deed can cause difficulties in the future.)
A local estate planning or elder law attorney could help you decide on the best approach and implement it once you have decided. While you’re at it, make sure you sign a durable power of attorney and health care directive as well.
