Q: My husband and I have been married for almost nine years. This is the second marriage for each of us. I moved into his home. Although we have wills, they are basic, meaning that whoever goes first, the other gets everything. 

We each have one grown child from prior marriages. We never got the house in both of our names, it's always remained in his. I have invested time and money fixing the place up and sharing expenses. Should the house be in both of our names? We've discussed this, but never did anything, assuming that if something did happen to him, the house would automatically belong to me. Is this a correct assumption? Thanks for any info that will help. 

A: If discussions do not lead to action, they are basically a waste of time. In our view, since you have made contributions to his house -- both monetarily and indirectly by your labor, we assume your husband want each of your children to receive half of this home -- or any subsequent home you two may acquire.

Here are your options:

1) Title the home jointly and each of you will sign wills leaving the other a life estate interest in your respective half interest, with a remainder interest to your respective children, meaning that at the second death, the remainder interest of the first of you to die would pass to both children. At the second death, your wills should provide that the survivor's half interest would pass to the two children. The problem here is that either of you could change your wills and disrupt the plan.

2) You and your husband could enter into a contract to make and retain your wills that fully set out your plan. In this way, depending on the wording of the contract, neither of you could change your wills during life unless both of you decided to do so. This would make your respective children third-party beneficiaries of the contract. If you and your husband have a taxable estate, this would not be an option.

3) Your husband could reserve life estates for you and him and transfer remainder interests to your respective children. We do not believe that this is a good idea because if you want to sell the home later, you would be beholden to your children to sign off on the transaction. In addition, this would be a gift to your children, probably requiring a gift tax return. And lastly, since a remainder interest has value, if either or both of your children have debt problems, their interests could be subject to collection actions. 

To effectuate any plan, you and your husband will need a lawyer who understands the options available to assist you based on the law of your state of residence.

Q: I am an alert elderly widow with no children. I am not incapacitated, not disabled and not incompetent. I do not have a living will. Can I be sent to a nursing home against my will by my nieces and nephews? Are there any circumstances under which a nursing home administrator can admit me involuntarily?

A: No. Although possibly well-meaning, threats like this don't indicate good faith. We suggest you get a lawyer to prepare a durable power of attorney appointing a trusted individual or small bank trust department as agent along with a durable healthcare power of attorney, again appointing a trusted person to make your healthcare decisions if you become incapacitated. This is a warning to you, and you need to act to protect yourself.

 

"Next Steps: A Practical Guide To Planning for the Best Half of Your Life" (Quill Driver Books) will be released on August 1st and will be available through Amazon.com and many other outlets. You can learn more information about elder care law and write to the authors on www.nextsteps.net.

 Copyright 2009, Jan L. Warner. Dist. by Newspaper Enterprise Assn.