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.
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:
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.
If you have a spouse and no minor children, your spouse gets the home, no matter
what your will says.
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.
