18 Dec How can I make sure my son can stay in my house when I die?

Q. What I would have to legally do to make sure my youngest son stays in my home after I die? I am in my 70s and I have three children. My youngest son and his wife and two kids have lived with me in my home for the last five years due to my bad health. I don’t want any issues to arise after my passing with my older two children, and they know I intend to leave my home to my youngest son. I just don’t have it on paper and I don’t have money for an attorney. What should I do?
— Planning

A. Your fear is well founded.

It’s not uncommon for problems to arise after someone dies.

You have options, though.

You can execute a new deed in which you withhold a life estate and transfer the remainder interest to your youngest son, said Nancy Heslin Reading, an estate planning attorney with Reading Law Firm in Newton.

She said this would be a “bullet-proof solution.”

“Don’t let your attorney talk you into transferring the house now to your son because he would lose the step-up in basis for capital gains tax purposes and possibly jeopardize eligibility for Medicaid,” she said. “Adding your son as a tenant in common would likely be inadvisable because at your death, half of the ownership of the property would pass not to him but pursuant to whatever your will says.”

More to the point, she said, it leaves the door open for family arguments.

Likewise, if you add your son now as a joint tenant with right of survivorship, your son will lose the step-up in basis for capital gains tax purposes and may not have the means to pay that tax when the time comes.

We understand you said you can’t afford an attorney, but you need one. Perhaps your younger son can help to pay the fees.

Otherwise, you can try to find someone who will work pro bono or for a low fee through your county’s bar association.

You need an attorney who understands the nuances and prepares the correct kind of deed so there will be nothing your older children can do about it when you pass.

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This story was originally published on Dec. 18, 2020.

NJMoneyHelp.com presents certain general financial planning principles and advice, but should never be viewed as a substitute for obtaining advice from a personal professional advisor who understands your unique individual circumstances.