Can a Will preclude me from drawing equity from our house?

My husband passed and put a clause in the Will that I cannot restructure or use the property as security against future debt. The property was acquired during the marriage. I want to

restructure the payoff 25k and pull my 50% equity to help pay for the medical bills from his cancer treatment along with payoff the mortgage.

Asked on June 27, 2016 under Estate Planning, Louisiana

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Generally, a will cannot put unreasonable restrictions on a person's use of the home after inheritance.  So, assuming that this was not community property, then he can't put a restriction that prevents your use and enjoyment of the property.  There may be a clause such that he has done it properly, but the wording you describe does not indicate that.
Second.... the will may not even control.  When you go visit with the attorney, take a copy of the deed of trust or any title documents to the property.  Most deeds that are in the names of two people will pass title automatically, without any conditions, upon the death of one of the owners.  This is called the "right of survivorship."  If your deed included language like this, it will control over any provision in the will.... making any of his limitations in the will moot.


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