Will Guide
What Happens if You Die Without a Will
Leaving Property to Heirs
Homes and Family Residence
Testamentary Trusts
Amending and Revoking Your Will
Marriage, Divorce and Children
Estate Taxes
Will FAQs
What is a will?
What happens if you die without a will?
Is my out-of-state will valid if I move?
What makes a will legal?
Can I make a handwritten will?
Do I have to file my will with a court or in public records?
Can I disinherit someone?
What should I do with my will after I sign it?
Can I change or revoke my will after I make it?
What happens to my debts after I die?
Where can I get my will notarized?

What You Need To Know

Homes and Family Residence

A homestead is the permanent home of a person who: (1) is married and/or has minor children; and, (2) owns the property in his or her name alone. 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.

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 property 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 set up a living trust. It might be a good idea to consult an attorney if you cannot determine whether your home is homestead property.

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