It’s that time of year — cabin fever! Everyone loves to escape to the lake on the weekends. What’s not to love? Family, friends, and good memories being made. However, what happens when the owner passes? The fun and memories do not need to end. Make your family cabin a legacy to your children and future generations through careful estate planning.
Unfortunately, as a real estate attorney as well as an estate planning attorney, I see way too often when things go south. Couples often tell me that they have a very close family and all their children get along great…that is, until they don’t. Once mom and dad pass, that is when grief, greed, and fallouts occur. My advice to couples is to plan for what they want to happen to the cabin (or hunting land) once they are gone.
A great place to start is to host a dinner and invite all the children and their spouses. In-laws are imperative to the planning meeting so they can understand what mom and dad’s intentions are first hand. Have open discussions about who wants to continue using the cabin, who can afford to fund the cabin for taxes, maintenance, and improvements? What happens if one child moves to Texas and never uses the cabin? What if one child wants to add on to the cabin or put in a new dock? How will everyone agree, and decisions remain civil? These are all important discussions worth having so an agreement can be made and put in writing, so everyone is on the same page. If you want your family cabin to remain a family cabin, please make a plan!
The following are some of the ways my clients have planned for their family cabin:
Most clients set up a Cabin Trust. By setting up a Trust, it keeps the cabin out of probate and allows them to “control it from the grave”. By that I mean, you get to establish the rules and conditions for how the cabin continues after you are gone. This can be helpful to allow for voting rights amongst the kids, dictate how the expenses and maintenance are shared, and addresses options for improvements and buyouts. A trust can also protect against creditors if one of your children experience financial difficulties with bankruptcy, judgments, tax liens or in the unfortunate situation of a divorce. It can also keep the property in the family and pass it to your grandchildren if your child predeceases you, instead of their share going to their spouse and new husband/wife should they choose to remarry.
LLC or FLLP
Some clients will set up a Limited Liability Company (LLC) or Family Limited Liability Partnership (FLLP). This option also keeps the cabin out of probate. In addition, it can have an added benefit of protection if the cabin will be rental property and there is an unfortunate event of accidents or injuries that occur on the property. However, this option can be more expensive to set up and involves yearly accounting.
Setting up a Transfer on Death Deed (TODD) will also avoid probate. The TODD transfers the cabin to a named beneficiary in the event of the owners’ death. This option also keeps the cabin out of probate. In addition, it can have tax benefits, allowing for a stepped up in basis. However, a TODD is not the best option if there are multiple beneficiaries. Instead of transferring to 3 children, if they are married, you now need all 6 of them to agree and sign off in the event of a sale. The cabin is also exposed to potential creditors and divorce situations.
A Quit Claim Deed is another way to avoid probate. This is not a common plan. A QCD is turning over the title to the property to your children. You will relinquish all rights. Be sure you are ready for that. By doing this, it does not allow you to sell the cabin or mortgage it. It will also count as an asset to your children’s financial portfolio. This might not a good option if they have kids trying to qualify for college financial aid. A QCD also does not qualify for a step up in basis for tax purposes.
If you decide to do nothing, the cabin will be a probate asset and be disposed of through your Will (if you have one) or will be distributed according to the Intestate Succession Laws. Probate is not the end of the world but can be expensive and can be a very drawn-out process, causing families to become estranged.
As you can see, there are many options and every family situation is different. I would love the opportunity to discuss the best option for you and your family. Bring on the cabin fever and keep it in the family for generations to come!
This article was originally published in Real Estate Agent Magazine.Continue Reading...