Dealing With the Family Home in Your Will

First of all, congratulations on starting your Will. Seriously! Practical as it may seem, it’s a smart thing you’re doing, so well done you.

Sooo… who gets the house after you die? Let’s unpack this FAQ.

Well, who owns the house?

Step one is determining the true owner/s of the house. If you own a home, you’re either a sole homeowner, a joint tenant or a tenant in common.

(Don’t worry, we’ll break the last two down for you… like, right about now…)

Joint tenants

This means that the home will automatically pass to the other person named on the title, in the event that you die. So, it won’t form part of your estate and you can’t leave “your share” to a beneficiary.

Tenants in common

This means that the people named on the title each own a share of the house. And not necessarily an equal portion. In the case of your death, you can leave your share to your children.

Caring for your spouse

Generally speaking, Willmakers usually prefer to leave their home to their spouse. But if there is no surviving spouse, or if your home is in your name only, or if you do indeed own your house as tenants in common, then you can leave it (or your share of it) to your children. 

However, you can also give your spouse (or ex spouse) a life interest, via a right of residence clause in your Will. That will allow them to live in the home until their death (or whenever they want to relocate), at which time your children can sell the home or do with it what they choose.

Did you know that Willed can insert a right of residence clause in your legal Will? Better still, it’s a complimentary service. Simply email the team at [email protected] to find out more.

Looking for information about transferring property after a loved one has died? Read more about property transfer here. 

Can I leave the house to just one child?

Willmakers can typically leave their Estate to anyone they choose. If they so desire, they can leave their Estate to one child, and not the others. In some cases, however, the Court will need to be satisfied that adequate provisions have been made for other children, like adult children who might have special needs, for example.

Is this where testamentary trusts come in? 

Well yeah, they could… but that’s entirely up to you and your life circumstances. Testamentary trusts are set up in a person’s Will and come into effect upon their death. This type of trust holds and protects all, or a part or the assets, like property or investments, (just to name a couple) and it looks after the assets for the beneficiaries.

You might consider leaving the home to a testamentary trust if:

• You have a blended family, as they can provide for your current partner as well as children from a previous marriage or partnership (Note, a more simple solution might be a right of residence clause)
• You are providing for children who are not financially responsible
• You want to ensure that you provide support for your children, but also ensure that your estate assets eventually pass onto your grandchildren
• You are providing for a child or children who live with a disability

There are plenty of other reasons why people choose to leave the home to a testamentary trust. Read more here.

Wrap up 

• In order to leave your house to someone, you must first determine who actually owns the house (i.e, if you’re a sole owner, a joint tenant or a tenant in common).
• In Australia, Willmakers generally leave their Estate to their surviving spouse, but can leave their Estate to anyone they wish (there are some exceptions).
• Testamentary trusts are a sound option if you have a blended family/children from a previous marriage or partnership.

Head spinning? Our team of experienced lawyers are available to talk through any questions you may have about Wills or Estates. Contact us today and we’ll help you sort through all the confusing legal noise. 

Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice.