Naming Your Child as Home Recipient in a Will: Legal Implications
As a Maryland wills attorney, I often receive questions from clients regarding the distribution of their assets upon their death.
One question that comes up frequently is, "If I give my home to my child in my will, can they take my home while I am still alive?"
To answer this question, it is important to understand the legal concepts of title, ownership, and the purpose of a will.
Title to property, including real property such as a house, is a measure of legal ownership.
The person who holds the title to the property controls the property, and has the right to lease, mortgage, refinance, sell, gift, or do anything else with the property. When an individual purchases a home, they receive title to the property through a deed, which proves their ownership of the property.
It is also important to understand that a will is a legal document that specifies what happens to a person's property upon their death.
The key phrase here is "upon death." A will is not effective until the time of a person's death, and does not change title to property during the person's lifetime. When a person names their child as the recipient of their home in their will, this simply means that their child will receive the home after their death. However, the child has no ownership rights to the home while the person is still alive. Additionally, the person can rewrite or change their will at any time while they are mentally able to do so.
While naming a child as the recipient of a home in a will ensures that they will receive the home upon the person's death, it also means that the child will have to go through the probate process to complete the title transfer.
To avoid probate, some individuals put their child's name on the deed to their home while they are still alive, with the intent of continuing to own the home until their death, and then passing it to their child. However, this is not recommended as it would make the child a co-owner of the property. As a co-owner, the child would have the right to lease, mortgage, refinance, or do anything else with the property. This would give the child, and their creditors, the ability to take the home while the person is still alive.
To ensure that a person maintains control of their home while they are alive, and that their child receives the home upon their death without having to go through the probate process, there are estate planning tools such as a transfer-on-death deed or a revocable living trust that can help achieve these goals.
In conclusion, naming a child as the recipient of a home in a will does not give the child the ability to take the home while the person is still alive. The person's will only becomes effective upon their death and does not change title to the property. To ensure that the person's home is transferred to their child after their death, while also avoiding the probate process, it is advisable to consult with a Maryland wills attorney and discuss the use of estate planning tools such as a transfer-on-death deed or a revocable living trust.
If you require legal assistance with your will and estate planning in Maryland, you may schedule a complimentary initial consultation with our Bauhof Legal team. Every estate is unique and individual, and this website is not intended to offer legal counsel. Please feel free to reach out to us at firstname.lastname@example.org or give us a call at +1 (410) 876 4500.