In my Will, can I include conditions of a house that is in my husband’s name only?

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In my Will, can I include conditions of a house that is in my husband’s name only?

My husband’s name is on the title of a home, that my son his family live in. This was due to credit issue my son had at the time he my son wanted to re-finance on the house to do upgrades. My son and daughter-in-law pay the mortgage directly to the lender, and cover any expense needed for the home. So my husband is just on the title and that’s all he has to do with the house. Now, I’ve been diagnosed with Leukemia and it’s not looking good for me. I want to make sure that when I do pass, that my husband who is not the biological father to my son does not try to sell the house from underneath them. Although he said he wouldn’t, I want to be sure there is no issues with it when I’m gone. Can I include in my Will that so long as my son continues to pay the mortgage on time and maintains the house, that he cannot or will not sell it without my son agreeing or permission to sell the house, even though my name is not on the title or loan of the home? I would also like to include how the money should be situated if when they ever decide to sell the house. Would this be legally binding in my Will?

Asked on June 4, 2019 under Estate Planning, California

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

Since your husband's name is the only one on the deed to the home, then he is the sole legal owner. Accordingly, you have no right to put conditions as to what happens to it in your Will or otherwise. Therefore, your husband can do as he pleases with it, including removing your son from residing there and/or selling it to whomever he chooses.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

Your name is not on the house; therefore, it is not your house, since a house is owned by the person to whom it is titled. You write that only your husband's name is on the house; that means he, not you, is the owner. You cannot will or put conditions on another person's property; and the owner of a home is free to sell it when he wants (or remove your son from the home and live in it himself). Under the situation you describe, the home is under your husband's control and is owned soley by him, no one else.


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