Courtesy Herzog Law
By David A. Kubikian, Esq.
When people own something of sentimental value, they are sometimes unsure of how to pass it down to their family for future generations to enjoy. This is especially the case with a vacation home or camp that has been in the family for years.
Example: You own a beach or lake-front vacation home for years in a now sought-after area. You have seen your children (and grandchildren) grow up there and recall memories of watching sunsets over the water, roasting marshmallows over a campfire, and teaching the kids how to swim. It may be difficult to think that this home will be sold out of the family when you die and would like to preserve it for enjoyment of generations to come.
How can you best insure this property will be there for future generations to enjoy (and at times cohabitate), as your family tree grows or in future after your passing?
Who will be responsible for paying the Insurance? Taxes? Repairs? Maintenance? Fees?
Who decides which family members or friends use it and when?
What impact would future divorces or bankruptcies have on the property?
How can you protect the property from a Medicaid spend down?
While all of your children enjoyed the vacation home or camp growing up, some may no longer live in the area or use it on a regular basis. Other relatives may also like to use the property when it is not in use. If you leave the vacation property as part of your estate and divide it among the children without thinking of the particulars, the risk is that the joy will be replaced with future disputes about the future and use of the property. Some children may not want to pay to maintain an asset they rarely use.
Those that do want to keep it may not be able to afford to buy the others out. It can also create sibling squabbles when it comes to its use.
To alleviate your concerns, there are a number of Estate Planning options you should consider for the transfer and management of a vacation property.
You can always transfer the property to one or more children during your lifetime, or leave it as a bequest upon your death. However, this “direct” or outright gifting strategy comes with many risks and potential tax implications. Since no one can predict the future, your family’s vacation home may become a part of future divorce proceedings, bankruptcy, lawsuit or probate. Without proper planning, a vacation home may need to be sold to pay for long-term care costs. The asset may now also be counted for purposes of college financial aid. Worse yet, due to second marriages or death, the house may be inadvertently inherited by in-laws and not stay in the family.
There may be a better legal solution that might work for your family. Several options include:
Co-ownership. Ownership among family members could include being tenants in common or joint tenants with rights of survivorship. Risks above may still apply, especially if siblings do not get along.
With the property held in trust, it may be sheltered from future divorces, an unforeseen bankruptcy, a child who needs public benefits, becomes disabled or in case of their unfortunate death, while simultaneously keeping strategic tax benefits. After your death, the property could continue to be managed within the trust.
A Limited Liability Company (LLC) can own the home and would be managed by its members or an independent property manager. The rights and responsibilities of the members are spelled out in the LLC operating agreement. An LLC can contain specific provisions on the use of the property, sharing of costs, and the transfer, inheritance or selling of member interests. An LLC helps centralize the management function for the property.
Any structure for ownership of vacation property should account for the possibility that eventually, the family may no longer want to own the property, it has become cost prohibitive, or receive an offer that they can’t refuse. A plan needs to be in place.
Here are just some of the questions that families should answer when deciding on a structure for transferring a vacation home to future generations:
1. Do family members get along and want to keep the vacation property in the family? If no one is interested in keeping the property, it could simply be sold after your death.
2. How should siblings pay for regular maintenance and expenses of the property? Should there be a property manager or will each person pitch in to help with routine and emergency repairs, cleaning, yard work, winter storage, etc.? How are real estate taxes, insurance and utilities paid for? What about remodeling or improving the home or other structures on the property?
3. How will time at the vacation home be scheduled? Will everyone fit or will each sibling get a certain number of weeks? Is scheduling time first-come, first-served, rotational or do families “draw straws” for popular times?
If your dream is to keep your cherished vacation home in the family for years to come make sure you have created a plan.