Irrevocable Will enough?

[sgtredleg]

Hello everyone,
I'm new here and am still trying to find my way around.
I'm here because I have a situation that I need some advice on and hope someone can enlighten me a bit and point in the right direction:

My ex-wife and I currently are joint owners of a paid for acreage ( in New Mexico ) with no house on it.
I am intending to take my name off of the deed, leaving her as the sole owner. We both agree that upon my ex's death the property goes to my oldest daughter. My ex intends to set up an Irrevocable Will to insure that.
However, my ex intends to build a house on the property and likely will be in a new marriage and paying a mortgage. Her new partner has kids as well. Can an Irrevocable Will insure that my daughter receives the property even if there is an active mortgage attached to the land? What if the new husband has the mortgage in his name only? Does that give him ownership of the entire property? Sorry for more than one question but I'm kinda lost here.

Any solid info would help, Thanks in advance.

 

[LdiJ]

Hello everyone,
I'm new here and am still trying to find my way around.
I'm here because I have a situation that I need some advice on and hope someone can enlighten me a bit and point in the right direction:

My ex-wife and I currently are joint owners of a paid for acreage ( in New Mexico ) with no house on it.
I am intending to take my name off of the deed, leaving her as the sole owner. We both agree that upon my ex's death the property goes to my oldest daughter. My ex intends to set up an Irrevocable Will to insure that.
However, my ex intends to build a house on the property and likely will be in a new marriage and paying a mortgage. Her new partner has kids as well. Can an Irrevocable Will insure that my daughter receives the property even if there is an active mortgage attached to the land? What if the new husband has the mortgage in his name only? Does that give him ownership of the entire property? Sorry for more than one question but I'm kinda lost here.

Any solid info would help, Thanks in advance.

This whole thing is a recipe for disaster. How much acreage is there? Could the acreage be subdivided so that the ex and her new spouse have the lot where their house would be located and the rest transferred to your eldest daughter now? There is no way to avoid your ex's new husband having an ownership interest in the home, and that makes it very complicated. I would try to find a way to divide the land now, rather than simply signing it over to your ex, even if that means you keeping ownership of 1/2 of the land.

 

[justalayman]

I don't know if you can even make a will irrevocable.

look into trusts. More acceptable and settled in the law.

 

[sgtredleg]

Thanks for the info board members.
It is a 5 acre parcel, so yes it may be able to be subdivided. That is something I hadn't really considered. These are the kind of suggestions I was hoping for, now I have something I may be able to work with.
Thanks again,

 

[tranquility]

Think trust.

 

[curb1]

I would like to know how five acres in New Mexico would be worth the potential hassle? Would your daughter (is it ex's daughter also?) want to live next door to ex and new husband?

 

[latigo]

I don't know if you can even make a will irrevocable. . . .

Same as mutual wills an agreement to make an irrevocable can be enforced against the testator’s estate: provide it is the subject of a separate, binding written contractual agreement wherein the irrevocability of the testator’s will is clearly expressed.

Here the transfer of property to the wife would be adequate consideration to support the agreement. And the agreed upon devisees would have standing as third party beneficiaries.

 

[justalayman]

Same as mutual wills an agreement to make an irrevocable can be enforced against the testator’s estate: provide it is the subject of a separate, binding written contractual agreement wherein the irrevocability of the testator’s will is clearly expressed.

Here the transfer of property to the wife would be adequate consideration to support the agreement. And the agreed upon devisees would have standing as third party beneficiaries.

My understanding about irrevocable wills has led me to understand they are often difficult to enforce the provisions should the testator decide they wish to change the will.

It would seem much simpler with less chance of a problem to just utilize a trust , or even simpler, transfer the propert to the daughter while retaining a life estate for op's wife

 

[LdiJ]

My understanding about irrevocable wills has led me to understand they are often difficult to enforce the provisions should the testator decide they wish to change the will.

It would seem much simpler with less chance of a problem to just utilize a trust , or even simpler, transfer the propert to the daughter while retaining a life estate for op's wife

I don't discount the value of a trust, but that is still not going to address the fact that the ex's new spouse is going to have ownership of any home built on the property, and that is going to complicate matters, even with a trust. That is why subdividing (or a combination of subdividing and a trust) may be the safer way to go.

 

[justalayman]

With a trust, without other agreements, a home built on property becomes the property of the owner of the land.

A mortgage on the home without propert does become an issue though. The split idea does sound more practical. Allow the absolute minimum required to allow building a house that way if the division after death becomes problematic, the daughter loses the least amount of property possible

One problem not addessed with a will is: the new spouse may, and is likely, to have some claim to some interest in the property, regardless what a will states. As well, if the ex has financial problems, she could lose ownership of the property for a variety of reasons.