What happens to your family home when you pass away?
Ensuring that your loved ones are safe and secure in their own home is one of the most important considerations when writing a will, especially if they are dependent on you to keep a roof over their heads. What happens to your family home when you pass away in England and Wales depends on whether you have a will and how your home is owned.
Home Owners
If you own your own home, you are broadly free to leave your home to whomever you wish.
If you have a will, the terms of your will will determine who inherits your home. You can leave your home to anyone you choose, including your spouse, children, grandchildren, other relatives, or friends. You can also leave your home to a charity or other organization.
If you do not have a will, the laws of intestacy will determine who inherits your home. The laws of intestacy are complex, but they generally give priority to your spouse, children, and grandchildren.
If you own your home jointly with someone else, the rules are different. If you are joint tenants, the surviving joint tenant will automatically inherit the whole home. If you are tenants in common, your share of the home will pass according to your will or the laws of intestacy.
There are a couple of additional considerations to keep in mind:
If you have a mortgage on your home, the mortgage lender will need to be repaid or transferred before the deeds can be transferred to the new owner. The mortgage lender will need to approve the beneficiary for the outstanding mortgage amount before a transfer of the mortgage can take place.
You may also wish to consider your children’s interests if you own your home. There’s always a risk of sideways disinheritance if your children are from a previous marriage and/or your current partner chooses to remarry, considering marriage will usually revoke a will. You can elect to leave your interest in a property in a trust where your children are the ultimate beneficiary, but your partner is given the right to reside or earn income from the property during their lifetime, or until they remarry.
Renters
If you rent a home in England and Wales and you pass away, the tenancy will not automatically end. The tenancy will continue until the end of the fixed term, or until the landlord gives the required notice to quit.
The landlord may be able to end the tenancy early if the tenant has died and there is no one else who can take over the tenancy. However, the landlord will need to follow the correct legal procedures to do this. If there is someone who wants to take over the tenancy, they will need to contact the landlord and ask to be added to the tenancy agreement. The landlord may or may not agree to this, depending on the circumstances. If there is no one who wants to take over the tenancy, the landlord will need to find a new tenant. The landlord will be able to advertise the property and choose a new tenant in the usual way.
The rent for the property will still need to be paid, even after the tenant has died. The landlord can claim the rent from the estate of the deceased tenant. If the estate of the deceased tenant does not have enough money to pay the rent, the landlord may be able to take legal action to recover the rent, although this is unlikely to be a good use of time, effort or legal fees.
There are some additional factors to consider in particular scenarios:
If you have a joint tenancy with someone else, the tenancy will continue for the surviving tenant.
If you have a tenancy that is linked to a benefits claim, the tenancy may end if you die.
If you have a tenancy that is linked to a housing association, the housing association may have specific rules about what happens to the tenancy after your death.
Broadly speaking, if you find yourself living in a rented property where the tenant is recently deceased or executing a will of someone who is recently deceased, we strongly recommend speaking to the landlord or housing association as soon as possible. People and organisations are generally very accommodating in such circumstances. You will usually be treated fairly if you are open and honest about the situation, and work with the other party to ensure that either the rent is paid or property vacated as soon as is reasonably possible.
