How a home passes when someone dies depends on how it's owned and on state law — so it's worth understanding how you own yours before thinking about how it might feature in your Will.
In many cases, a home can be left through a Will. You might leave it as a specific gift to a particular person — or, if you don't single it out, it generally forms part of your residuary estate: the property left over after debts, expenses, and any specific gifts have been handled, which goes to your residuary beneficiaries.
If the home has a mortgage, the Will created on EveryWill provides that property passes subject to any mortgage or other debt secured against it — and your executor isn't required to pay that debt off from the rest of your estate. In practice, that means the mortgage stays attached to the home, and whoever receives it would usually need to keep up the payments, refinance, or make other arrangements with the lender.
Some homes, though, may pass outside a Will entirely:
Co-ownership with a right of survivorship: where a home is co-owned with a right of survivorship — such as a joint tenancy or, in some states, tenancy by the entirety — the deceased co-owner's share generally passes automatically to the surviving co-owner, regardless of what a Will says.
A living trust or Transfer-on-Death deed: where a home is held in a living trust, or has a Transfer-on-Death (TOD) deed in states that allow them, it generally passes under those arrangements instead.
Community property: in community property states, a Will generally covers only the Will-maker's own share of a home owned with a spouse.
Checking how your home is owned — your deed is the usual starting point — is a sensible first step. If you're unsure how it's owned, or how best to leave it, you may wish to consult an estate planning attorney in your state.
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EveryWill is not a law firm, and does not provide legal advice. This article is provided for educational purposes only; it is not, and should not be taken as, legal, tax, or financial advice. Laws vary by state and change over time, and this article is not a substitute for the advice of an attorney licensed in your state who knows your circumstances. Reading this article does not create an attorney-client relationship with EveryWill. Use of EveryWill’s platform and services is subject to its Terms of Service and Privacy Policy.