Right of Occupancy Trust: A Trust to Protect Your Home and Your Loved Ones

Posted by ANGELA RICH HARTMANN | Aug 29, 2022

For many, estate planning is about protecting you and your loved ones. Sometimes this can be a difficult endeavor when there is a loved one who may require additional support at your death. While you may want to give as much as possible to this individual, you may not want to do so at the expense of others you care about. A right of occupancy trust can help you plan for this situation as it relates to property use and ownership.

What is a right of occupancy trust?

A right of occupancy trust allows you to designate a beneficiary to live at your residence or use another piece of real estate for a designated time period or until the beneficiary dies or moves away. To implement this strategy, you include a provision in either your last will and testament or trust agreement that places the real property into a separate subtrust overseen by the trustee you have selected. The terms of this provision may allocate money to the subtrust to cover the property's maintenance expenses. Instructions are also included that outline the beneficiary's rights and responsibilities, as well any responsibilities that the trustee will need to undertake on the trust's behalf. Finally, the trust instrument directs what happens to the property once the beneficiary passes away. 

What can be addressed with a right of occupancy trust?

When implementing this strategy, it is important to think through these questions to ensure that you provide clear guidance as to your wishes:

  • Is the tangible personal property (e.g., furniture, appliances, knickknacks, etc.) included with the property?
  • Do you want to set aside money for administrative costs, state and local taxes or assessments, utilities, property insurance, and mortgage payments, or will these be the beneficiary's responsibility?
  • If the property includes a residence, does the beneficiary have to live there full-time?
  • Can the beneficiary allow a subsequent spouse, friend, or companion to live at the residence?
  • Does the beneficiary have the right to stay at the residence for their lifetime, or does some other occurrence (e.g., remarriage, being admitted to a long-term care facility, etc.) terminate the beneficiary's use?

Why should you consider a right of occupancy trust?

If you have a residence in your sole name but want to provide your surviving spouse a place to live without potentially disinheriting your children from a previous relationship, this strategy will enable you to protect all parties.

If you have property that has been in your family for generations that you want your surviving spouse to be able to use for their lifetime, but you have a compelling desire to ensure that the ultimate ownership is passed to your children in order to keep the family property in the bloodline, a right of occupancy trust can assist you with this goal.

If you have a loved one who is dependent on you and you want to ensure that they have a place to live after your passing, a right of occupancy trust can provide that security for your loved one while also protecting the home for the benefit of other loved ones in the future.

It Takes a Village! Use your Team to Support You

To ensure that your wishes are carried out, it is prudent to get your team involved to anticipate, plan, and execute all aspects of this strategy.

A financial advisor can sit down with you to evaluate your current financials and discuss the steps you need to take to ensure that money is available to maintain the property if you intend for most of the expenses to be covered by the trust.

You should consult an insurance agent to ensure that your residence is properly insured through all of the different ownerships (i.e., yours, the right of occupancy trust's, and the ultimate recipient's, whether a remainder beneficiary or another trust). Your insurance agent can also advise you about life insurance options if you do not have the financial resources or cash assets to provide the funds needed to maintain the residence. Life insurance may provide the liquidity necessary to implement your plan.

A tax advisor should be consulted to discuss important tax implications of a right of occupancy trust and to answer these important questions:

  • Will your beneficiary be allowed to take any income tax deductions with respect to the property?
  • Will the property qualify for any applicable property tax exemptions that may currently be lowering the property tax bill?
  • Will the property tax be uncapped at any point during the funding or trust administration?

Hartmann Law is available to counsel you on the options you have with respect to how your property is handled and how you want to provide for your loved ones. Once you have decided how to proceed, we can ensure that your wishes are documented in a legally enforceable way, giving you peace of mind that your plan will proceed smoothly at your passing and that your loved ones will be taken care of.

Do You Have Questions about a Right of Occupancy Trust?

If you are interested in learning more about a right of occupancy trust or other ways we can customize an estate plan to protect you and your loved ones, contact Hartmann Law to learn about estate planning options available to you.

Take steps to start your Life and Legacy planning today!  Take action to ensure you voice is heard when you are unable to speak for yourself.  Make the decision to protect yourself, your loved ones, your business, your property.   

Schedule a call today with Hartmann Law.

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About the Author


Angela Rich Hartmann is a New Jersey attorney serving clients in the areas of estate, business, and real estate law.