As a Maryland wills attorney, I often receive questions from clients about how their assets will be distributed after their death. One common question 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.
Understanding Title and Ownership
Title to property, including real property such as a house, represents legal ownership. The person who holds title controls the property and has the legal right to lease, mortgage, refinance, sell, gift, or otherwise manage the property.
When an individual purchases a home, they receive title through a deed, which serves as legal proof of ownership.
The Role and Purpose of a Will
A will is a legal document that specifies what happens to a person’s property upon their death. This phrase is critical because a will has no legal effect during the person’s lifetime.
Naming a child as the recipient of a home in a will means only that the child will inherit the home after the parent’s death. The child has no ownership rights to the property while the parent is still alive. Additionally, the person who created the will may revise or revoke it at any time, provided they are mentally competent.
Probate and Transferring a Home Through a Will
When a home is transferred through a will, the property must typically go through the probate process before title can be formally transferred to the child. Probate can be time-consuming and may involve court oversight.
Why Adding a Child to the Deed Is Risky
Some individuals attempt to avoid probate by adding their child’s name to the deed while they are still alive. This approach is generally not recommended.
Once a child is added to the deed, they become a co-owner of the property. As a co-owner, the child has the legal right to mortgage, sell, refinance, or otherwise encumber the property. Additionally, the child’s creditors could potentially place claims against the home while the parent is still living.
Estate Planning Alternatives to Protect Your Home
To maintain full control of your home during your lifetime while ensuring a smooth transfer after death, estate planning tools such as a transfer-on-death deed or a revocable living trust may be appropriate solutions. These tools can help avoid probate while preserving ownership and control during your lifetime.
Conclusion
Naming a child as the recipient of a home in a will does not give the child the right to take the home while the parent is still alive. A will only becomes effective upon death and does not alter property ownership during the person’s lifetime.
To ensure your home passes to your child efficiently while avoiding probate and maintaining control during your lifetime, it is advisable to consult with a Maryland wills attorney about appropriate estate planning strategies.
If you require legal assistance with your will and estate planning in Maryland, you may schedule a complimentary initial consultation with the Bauhof Legal team. Every estate is unique and individual, and this website is not intended to provide legal advice. Please feel free to contact us at brad@bauhoflegal.com or call +1 (410) 876 4500.
