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7. Distributing Homes and Family Residences in Wills

A homestead is the permanent home of an individual, or people who are:

(1.) married and/or have minor children and

(2.) own the property.

Homestead laws generally state that the family home will become the property of the surviving spouse and minor children, free of the claims of creditors.

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In some states, if you have real estate that is a homestead, your will has no control over it. Upon your death, your homestead will automatically pass as follows:
  1. If you have both a spouse and minor children, your spouse gets the right to live in the home for the rest of his or her life, and your children get the home upon your spouse's death.
  2. If you have a spouse and no minor children, your spouse gets the home, no matter what your will says.
  3. If you have minor children but no spouse, your children get the home in equal shares, no matter what your will says.
An exception to the above rules occurs when you have a spouse and adult children. In this case, you may leave your home to your spouse alone.

Whether a home is legally a homestead can be a difficult legal question. Because homestead property is owned by one person alone, any property held jointly as community property or in trust does not fall under these rules. If you do not want your home to be considered a homestead, you should set up title to the home jointly or establish a living trust. It might be a good idea to consult an attorney if you cannot determine if your home is homestead property.

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