Out of House and Home: How to use Estate Planning for Real Estate

Many people ask: If I give my home to my child in my will, can they take my home while I am still alive?. The short answer to this question is No. Naming your child as the recipient of your home in your will does not give them any right to your home while you are still living. However, understanding why that is the correct answer requires a little more explanation.

Title Is Key

When it comes to real property such as a house, the person who has title to (or legal ownership of) the property controls the property. The title holder (owner) can lease, mortgage, refinance, sell, gift, or do anything else with the property. When you purchased your home, you received title to it through a deed. This deed proves you are the owner and you have all rights to your property.

A Will Is Effective Only upon Your Death

A will is a legal document that specifies what happens to your property upon your death. The key phrase here is “upon your death.” A will has no real legal significance until the time of your death. A will does not change title (ownership) to property during your life, so naming your child in your will as the recipient of your home means that they have no ownership rights to your home until after your death. Also, you can rewrite or change a will at any time during your life while you are still mentally able to do so. For these reasons, your child cannot take your home while you are still alive.

A Word of Caution

Using a will to give your house to your child at your death guarantees that they will have to go through the probate process to complete the title transfer. In an effort to avoid probate, some people will put their child’s name on the deed to their home while they are living, with the intent of continuing to own the home while they are alive and passing the home to their child at the time of their death. As discussed above, title to property is received through a deed. If you put your child’s name on the deed to your home, they immediately become a co-owner. As a co-owner, they can do what any owner of property has the right to do: lease, mortgage, refinance, etc. So while naming your child in your will as the recipient of your home at your death does not give them the ability to take your home while you are still alive, putting your child’s name on the deed to your home would indeed give them–and their creditors–that ability.

If you want to ensure that you maintain control of your home while you are alive, that your child receives your home upon your death, and that they can avoid the probate process, there are estate planning tools such as a Beneficiary Deed or a revocable living trust that can accomplish all of these goals. We are happy to meet with you to discuss your unique goals and how a tailored estate plan can help you meet them.