IF I LEAVE MY HOME TO MY CHILD IN MY WILL, CAN THEY TAKE IT WHILE I'M STILL ALIVE?
The short answer to this question is no. In Ohio, your child cannot take your home without your permission while you're still alive. 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. There are, however, some special estate planning tools in which a homeowner gives up their right to the property in exchange for other benefits.
Let's dive a little deeper into the legal side of things.
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 titleholder can rent out the property, refinance it, sell it, gift it, or do anything else with it they please.
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 and assets when you pass away. A will has no real legal significance until you die. It does not change title (ownership) to property during your lifetime. Therefore, 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 trust, however, is different. To fund a trust, ownership of property must be transferred to the trust. Each trust is different, and your ownership rights may or may not change during your lifetime. If you are thinking about drafting a trust, it is important to do so with the help of an experienced estate planning lawyer. They will be able to include legal specifications in the document that fit your unique needs.
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 probate to complete the deed transfer. In an effort to avoid probate, some people will put their child’s name on the deed to their house while they are living, with the intent of continuing to own the home while they are alive. 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. Putting your child’s name on the deed to your home while you are still alive, give them–and their creditors–the legal authorization to do what they want with the property.
There are many estate planning tools out there that you can choose to pass your home to your child upon your death, avoid probate, and keep your house while you are still alive. A transfer-on-death deed and a revocable living trust can accomplish these goals.
The experienced estate planning attorneys at DuPont & Blumenstiel are happy to meet with you and discuss your unique goals. We will craft a customized estate plan for you that fits your needs. Give us a call at 614-389-9711 to schedule an appointment.
To learn more about estate planning, read our Consumer's Guide to Estate Planning in Ohio here.