Now that summer is over, your clients' trips to their family vacation home may be winding down as well. That makes fall a great time for you to help them plan what exactly it is they want to do with their vacation home.
As with all estate planning situations, it is critical that you carefully consider your client's goals, objectives and family relationships.
If your client has children, failure to plan for the house may result in children owning the home as tenants-in-common, in equal shares -- typically a recipe for disaster. These arrangements mean that each child has an equal right to use the property and make decisions about it; each is equally responsible for the costs of upkeep, too. That sounds fine in theory -- but in practice, the heirs rarely have the same level of financial success, interest in the property and opportunity to use it. As a result it's common for at least one child (if not all) to become disgruntled.
Meanwhile, it can be very difficult to sell the property without complete agreement from all children. And if your client doesnt have children, there can be a variety of separate estate planning challenges.
It is the job of an estate planner to help clients avoid these problems. Here are some important tips that can help you maintain family harmony:
1. Determine the goal.
For some clients, it is very important to keep the home in the family for generations to come. For others, it's particularly important that only one or two of the children end up with the home, but that the value of the estate is equalized among all beneficiaries.
Some clients recognize that none of their family members have an interest in keeping the home and simply want to make sure the sale process is orderly and avoids family squabbles. If your client does not have kids, its likely best to leave directions for the home's sale in the estate planning documents.
Regardless of the ultimate goal, it's important to help the client think through the goals so they can feel fully satisfied with the end result.
2. Understand the beneficiaries' point of view.
Although it may sound surprising, many children view a vacation home as a burden rather than a gift. One child may live far away and hardly ever use the home. Another child might not be able to afford the upkeep, and would rather receive liquid funds.
As a result, it's important to understand the needs and desires of the beneficiaries. Even if a client would like to keep the vacation home in the family, you may need to help them understand that it may not be a realistic goal.
3. Consider using a trust.
Trusts can be very helpful when it comes to vacation homes. First, the trust names the beneficiaries who will have use of the house. The trust can also describe the terms of use by the beneficiaries, and can even create a usage schedule.
Trusts can also create a fund to pay for expenses. Consider setting aside a certain amount of funds from your clients overall estate to cover the annual costs associated with the house for a certain number of years; doing so can help the heirs avoid conflict over paying for house expenses. To determine the amount to be set aside, add up annual expenses -- such as insurance, property taxes, repairs and routine maintenance -- and multiply the amount by the number of years your client wants to cover. Rounding up will help take into account unanticipated expenses and increased future costs.
Lastly, trusts can help by appointing a trustee (or trustees) to make decisions for the house. Consider who should have responsibility for paying bills, arranging for property management, and overseeing the usage schedule. Remember that any trustee, as well as anyone helping the trustee manage the house, will be entitled to compensation from the trust assets.
4. Have an exit strategy.
Regardless of the plan, there should always be an orderly way for the home to be sold -- eventually if not immediately.
The sale could be to a child, the descendant of a child, or to an independent third party. You could use a trust to dictate the exact method of sale -- how a sale is triggered, which party or parties have the right of first refusal, and how to establish the value if the sale is to a family member. (For example, a sale could be triggered if all children decide to sell, or if a majority of all competent beneficiaries of the oldest generation would like to sell.)
Your client may also want to give certain beneficiaries a right of first refusal -- which could make it possible to keep the house with the family member who most wants it, while also having other beneficiaries receive their share of the value of the house. A trust can also detail who will receive the net sale proceeds and in what percentages.
If your client wants to avoid a trust, it may also be possible to put the vacation home in a limited liability company, and manage it that way. But your client would face many similar considerations when creating either an LLC or a trust.
Even if the goal is to keep the house in the family, make sure your client realizes that within a couple of generations, there will likely be many people using the house -- many of whom could be distant cousins who don't know each other well. Establishing an orderly way to sell the property can help avoid family fights among future generations.
Estate planning attorney Tracy Craig is partner at Mirick O'Connell and chairwoman of the firms trusts and estates group.
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