Family cottages are special places -- used by generation after generation, passed from hand to hand like a precious heirloom, to be filled with new memories and new additions to the family. Parents who work hard to buy a vacation place often cherish the idea of keeping the property in the family, so their children and their children's children can share lazy summer days or cozy fireside gatherings.
The Cottage Tug-of-War
Unfortunately, too many cottages and vacation homes go from happy idylls to combat zones, with forced sales, severed relationships, and an exasperated heir declaring to siblings: "I am tired of dealing with attorneys and all of you. I want out now!" Even in seemingly harmonious families, it is difficult to predict how siblings will relate to one another once the parents are not around to mediate disputes. And disputes do arise.
More than 80% of cottages and vacation homes are owned free and clear of mortgage debt, which means that a cottage or house often represents a substantial part of an owner's estate. To some heirs, the prospect of using the cottage is more desirable than its cash value. But heirs of modest means may be counting on their share of the value of the cottage to pay debts or put their kids through college.
Stepchildren and spouses who did not grow up at the lake or seashore often have weak emotional ties to the cottage but strong interest in its cash value. All of this sets the stage for trouble. Having no plan for the family cottage, or even relying on a traditional estate plan, leaves families vulnerable to turmoil.
Estate Planning for Cottages
The difficulties of passing on a vacation cottage while keeping peace in the family aren't just legal; they're emotional and even sociological. (Getting everyone to agree on how property should be used and maintained is never easy.) But there is one key legal problem you must understand: Generally, any co-owner can force the sale of real estate.
Let's say you leave your cottage to your three children. Two of them are happy to use the cottage and work at keeping it in good shape. But one of them lives far away and can't spend his vacations at the cottage. His wife and children have no particular attachment to the place. After a few years, he decides he just can't afford his share of the expenses (maintenance and taxes) and doesn't really want to own the cottage anyway. He'd rather have his share of its value in cash, to pay for your grandchildren's college tuition.
He asks his siblings to buy him out. They would like to but just don't have the money. They offer what they can, but it's far less than the actual value of his share. They hate the thought of selling the place and think their brother should just let things stay as they are. What now? If the unhappy sibling is determined to get his money out, he can force a sale of the property -- in court, if necessary. That's true even though he owns only a one-third share; in this situation, the majority does not rule. A forced sale not only means the family property is gone, but also that family harmony is deeply damaged, perhaps beyond repair.
The Alternative: A Cottage LLC Plan
A good alternative to leaving your children a direct interest in cottage real estate is to create a limited liability company (LLC), a form of business entity similar to a corporation, to own the property. Then, instead of transferring interests in real estate to your children, you can transfer the membership interests in the LLC to them. As a result, your children's rights and obligations (and those of future owners) are governed by the LLC "operating agreement."
That agreement, a document you draw up, covers scheduling, contributions to expenses, permissible owners, renting, maintenance, and whether the property can be mortgaged. It prevents forced sales but allows for graceful exits. You'll need an attorney's help to draw it up, but you and family members can decide on the important matters after discussing them. Your cottage plan doesn't have to be perfect (and you can change it during your lifetime if you want to). But even a good-enough plan can prevent costly and bitter strife among your descendants. They will thank you for it.
Before You Plan, Ask!
Before leaving an interest in your cottage to a child, confirm that the child really wants it. This is not as obvious or simple as it sounds. You love the cottage -- if you didn't, you either would have sold it or made arrangements to sell it at your death. Your emotional ties to the cottage can blind you to the child's feelings about it. You may have a hard time understanding why your child might not want an interest in the cottage, even if it requires the child to make financial sacrifices (as you may have done) to acquire and keep it. Especially if you have a child who lives far away, doesn't have children to inherit a share in the place, or has financial difficulties, be sure to ask. The best course may be to leave that child other assets instead of a share of property that might feel more like a burden than a gift.
Article provided by Stuart J. Hollander, Rose Hollander, and David S. Fry at Nolo.com.
Fanning Law, LLC Can Help
The facts of each case are unique and the laws in each state are different. This article provides a brief, general introduction to the topic. It is not legal advice. For more information about your specific questions, contact Bill Fanning at Fanning Law, LLC - The Offices of William C. Fanning, Jr. - 301.934.3620 or at www.fanninglawllc.com.