By John J. Stromberg

Estate planning for rental property owners involves a multitude of estate planning options available to rental property owners. Most rental housing owners understand the general purpose of a will and its goal to carry out the deceased’s instructions after their death. However, too many hapless owners have overlooked the necessary requirements to ensure their will’s validity, thereby triggering a myriad of problems for their heirs.

Primary Requirements to Execute a Will

 Even the most basic wills require one of the following events to occur in front of two or more witnesses: (1) the testator signs the will in front of the witnesses; (2) the testator directs one of the witnesses (or some other person) to sign the name of the testator and have that person actually signing for the testator also sign their name; or (3) the testator acknowledges that a signature previously made on the will without the witnesses present at that time, was in fact signed by the testator or signed at the testator’s direction. Further, those two witnesses must sign the will within a reasonable time before the testator’s death.

Modifying or Revoking a Will

Once a will is in place, the owner can revoke or modify it by (1) executing a subsequent will; or (2) burning, tearing, or otherwise completely destroying the current will for the intended purpose of revoking or altering the same.

The testator can even have another person carry out the latter acts at the direction, and in the presence, of the testator with at least two other people present to attest to the fact the testator did in fact direct that other person to take such action.

Witness as Beneficiary

 The owner’s heirs and beneficiaries can serve as a witness during the execution of the will. However, it is not recommended that the owner’s heirs, or a beneficiary, also serve as a witness due to concerns of undue influence on the testator that could later create costly litigation.

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If the testator’s will already includes instructions for a distribution of rental properties, marriage can trigger a revocation of that will, unless (1) the testator’s will shows a clear intent that it is not to be revoked by any subsequent marriage, or that the will was drafted in contemplation of the marriage; or (2) the testator and spouse entered into a written agreement before the marriage (e.g., a prenuptial agreement) specifying (a) what the spouse is to receive, or (b) that the spouse shall have no rights in the estate.

If the married testator divorces their spouse after execution of a will, the divorce triggers a revocation of (1) all provisions in favor of the former spouse, and (b) any appointment of the spouse as personal representative of the estate. (That’s why divorce judgments commonly describe the revocation of any previously executed wills.)

Who should be my Personal Representative?

Rental property owners should choose their personal representative carefully, as that person will be responsible for the testator’s estate.

An ideal personal representative would have property management experience, financial aptitude, and both the time and resources to maintain the properties with only limited direction from the testator’s will. Further, when there is conflict during distribution of the estate, it may become necessary for the court to exercise its authority and appoint a personal representative to resolve the issues.

There are a multitude of estate planning options available to rental property owners. Every owner is as unique as their estates and objectives. This short article offers only a handful of the different circumstances rental housing owners may experience when contemplating the proper execution of a will.

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