Dear Jonathan: I am a widow. After my son got divorced a few years back, he moved in with me. I am not in the greatest of health and when I do pass away, I have set up my trust so that all of my assets, including my house, are divided equally among my children. If my son is still living with me at the time of my death, what will his rights be regarding living at the house, or will he have any rights? Will my daughter, who is trustee of my trust, have the right to ask him to leave, and if so, how long will he have before he actually has to vacate the house? Although all my children get along, I don’t want this to create a problem between them, but at the same time I want my son to have time to find alternate housing. He is not in the greatest financial shape, so I am not exactly sure what he can afford to do. Any recommendations?
Jonathan Says: I am a big believer in clarity, so the first thing I recommend that you do is determine for how long you want your son to have the right to stay in the house after you pass away, and while he lives there, what, if anything, will he have to pay for, such as rent, utilities, insurance, taxes, maintenance, etc. Once you have answered those questions, then you should have a discussion with your son, your trustee daughter and your other children, and explain to them what you have decided. This way everyone will be on the same page and there will be no surprises. I would also take it one step further and amend your trust for the purpose of including what your son’s rights will be regarding the home after you pass away.
If you decide not to have a discussion with your children and/or amend your trust, and leave this issue totally unaddressed, you are setting your children up for a family fight if they cannot all agree how to move forward regarding this issue. It also potentially makes your daughter, who would be acting as your trustee, the bad guy if she decides she needs to evict your son, if he doesn’t leave on his own. Keep in mind that your daughter’s job as trustee is to act in the best interests of all the beneficiaries, not just your son, and without any direction from you, she will need to decide what is in the best interests of everyone.
Communicating to your children and amending your trust as to what rights your son should have to live in the home after you pass away, as well as what costs, if any, he should be responsible for, will only serve to promote family harmony and hopefully preserve your children’s relationship going forward. Good luck.
Dear Jonathan: A couple of years ago, I named my son as my agent under my financial durable power of attorney. He recently moved out of the country so it no longer make sense to have him act as my agent. What do I need to do to remove him from that position?
Jonathan Says: You should prepare a new financial durable power of attorney naming a new agent to act on your behalf, as well as an alternate agent, and in that document you should also specifically revoke your current financial durable power of attorney which names your son as your agent. Also, if your son was already acting for you under the current durable power of attorney and that document had been delivered to a bank or any other third party, once you have prepared your new durable power of attorney you should provide a copy to the bank and any other third party who has a copy of the prior one and advise them that your new durable power of attorney revokes the old one and your son is no longer your agent.
Jonathan J. David is a shareholder in the law firm of Foster, Swift, Collins & Smith, PC, 1700 East Beltline, N.E., Grand Rapids, Michigan 49525.