Should I leave my house to my children in my Will?

Your house is most likely your biggest asset and leaving your home to your children in your Will could help to secure their future. However, a substantial gift in a Will can carry a range of complications and it is important to consider whether leaving your house to your children is right for you.

How do I leave my home to my children in my Will?

How you own your home determines who the house, or your share of the house, will go to after you die. Gifting your home to your children is as simple as including it in your Will if the property is in your sole name. A qualified Will writing solicitor will be able to advise you on this when they draft or amend your Will.

However, married and cohabiting couples often own their home in joint names and, in this case, you must check the terms of your joint ownership.

Each form of ownership is subject to specific rules:

Sole ownership

The house will pass to the person/s named in your Will. If there is no Will, your house will be passed on in accordance with intestacy laws, which, in most cases, means your spouse/civil partner and/or your children will inherit it.

Joint tenants

Your half of the property will automatically pass to the joint tenant under the Right of Survivorship, regardless of the Will, unless you sever this agreement and become ‘tenants in common’.

Tenants in common

Your share in the property will pass to the person/s named in your Will, or if there is no Will, passed on under intestacy laws.

Trust Interest

If your share in your home is subject to a trust, the terms of the trust determines your rights to the property and what happens with your home in the event of your death.

How old do my children have to be to inherit my house?

Your child can inherit your house even if they are under the age of 18. However, any inheritance will be held in a trust for them until they reach 18 years old (or a later age specified in your Will). You would need to appoint trustees to oversee the trust.

Once your children reach 18 years of age or meet the conditions set out in the trust, the house will belong to them.

Key considerations

Whether you are the sole owner of your home, a joint tenant, or a tenant in common, there are practical and financial implications for the future owner/s of the property for you to consider.

The tax implications of leaving your house to your children

There are several tax implications in leaving the gift of your home in your Will:

• If your children have interest in another property, they could be liable for Capital Gains Tax or increased Stamp Duty Land Tax if they sell the property.
• If your property will be rented, your children may be liable for income tax on their share of the rent.
• If the value of your estate exceeds the Inheritance Tax allowances, you may be able to reduce the liability by leaving a gift of your home in your Will. A gift of your home to your children or grandchildren could secure an additional tax-free allowance of £175,000 (called the Residence Nil Rate Band).

Change of circumstances

However much we plan for the future, circumstances can change in ways we would never envision. Whoever inherits your house will also be handed the responsibilities, and the possible disputes, that come with it.

In the case that you pass away before your partner (who is a tenant in common) and your share in the home is passed to your children in your Will, your partner and your children would co-own your home.

Examples of complications that may arise include:

Housing needs

As co-owners with your partner, your children would be entitled to move into your home. Your surviving partner may need space to grieve or prefer to live alone. Your partner’s housing needs may also change with their age and your children may not agree to sell your home and purchase a replacement property for them.

Financial needs

If your children’s financial needs change, as co-owners they could ask your surviving partner to pay rent for their share in your home. Your children may also need to sell your home to enable them to purchase their own matrimonial home or to settle their debts.

Help to Buy scheme

Your children could be prevented from accessing help from the Government’s Help to Buy scheme to purchase their first home because they will already have interest in your house.

Family conflict

If your children and partner fall out, this could lead to expensive and stressful court proceedings. Your children may demand that your house is sold or your surviving partner may need to sell the home because their housing needs change.

Mortgages

Your property could be given to your children subject to a mortgage or the mortgage could be paid through the sale of your other assets.

If you decide to leave your home in your Will, it is important that you keep your circumstances under review. In particular, take into account the available assets to pay for your care fees if this ever becomes necessary. If your home is sold to pay for your care then the gift of the house in your Will may fail. This could leave some of your beneficiaries without an inheritance from your estate. Our expert solicitors can advise you on how to prevent the gift in your Will from failing.

You should also consider your children’s financial circumstances, their credit history, the lender’s requirements and the assets available in your estate. If you wish for the mortgage to be paid through your other assets, you would need to consider how this would affect your other gifts, i.e. whether there would be anything left for any other beneficiaries in your Will.

What happens if I outlive my child?

If you own your home as tenants in common with your partner, you may decide to give your share in your home to your children in your Will. On your death, your children would become co-owners with your surviving partner.

If your children die whilst they still co-own the property with your surviving partner, their share in your home would be passed on to their estate. The beneficiaries of their estate depend on whether they have a Will or not.

Your partner may not be comfortable with the new co-owner/s, who would be entitled to move into your home, charge rent, or deal with the property the same way you could. One solution to this problem is to create a trust in your Will.

A trust could:

• Allow your partner to purchase a replacement property
• Give your partner a right to any income produced by your home
• Give your partner the Right of Occupation
• Prevent your children from selling your home whilst your partner is still alive, or for a set amount of time
• Determine who should receive your share in your home if your children die

Our solicitors can advise you on the practicalities and tax implications of creating a trust in your Will and support you in making the right decision for you.

How our Will writing solicitors can help

Making decisions on the inheritance you leave can seem daunting, but writing a Will puts the control in your hands.

Our experienced, friendly Will writing solicitors have a wealth of knowledge in preparing a range of Wills and can offer specialist advice to help you decide whether leaving a gift of property in your Will is right for you.

We can review the terms of your property ownership to check that you can make the gift and change the terms of the ownership if needed. We can also advise you whether setting up a trust in your Will to enable your partner to stay in your home would be beneficial in your circumstances.

To speak to our expert Will Writers in Bristol and South Gloucestershire about writing or updating your Will, call us on 0117 325 2929 or fill out our online enquiry form.