Does how you own the house decide whether you can leave it?
Yes. Your will can only pass what you own at your death, and a joint tenant's interest passes to the other owner by survivorship rather than under the will. GOV.UK's joint property ownership guide states that joint tenants cannot pass on their ownership in a will, while tenants in common can.
| How you own it | What your will can do |
|---|---|
| In your sole name | Leave the whole home to your children, as a specific gift or as part of the residue. |
| Tenants in common | Leave your share to your children. The co-owner keeps their own share. |
| Joint tenants | Nothing while the joint tenancy lasts. The survivor owns the whole home, and their will decides who inherits it next. |
If you are joint tenants and want your share to go to your children, you would need to sever the joint tenancy during your lifetime. Our guide to joint tenants vs tenants in common explains how to check the title register and how severance works.
The home does not have to be named in the will. It can pass as part of your residuary estate, and HMRC's guidance says that where the residue is shared between several people, each is treated as inheriting a proportion of the home.
What happens to the mortgage?
The mortgage normally stays with the house. Section 35 of the Administration of Estates Act 1925 says that where property is charged with a debt, such as a mortgage, and the deceased has not shown a contrary intention in a will, deed or other document, that property is primarily liable for the charge. So a child who inherits the house also inherits the job of paying off, refinancing or selling to clear the mortgage.
- A general direction to pay "my debts" from the residue does not, on its own, shift the mortgage onto the rest of the estate (section 35(2)). The will needs words that refer to the mortgage itself.
- The lender's own rights are unaffected: section 35(3) keeps its right to be paid from other assets of the estate.
- Life assurance or mortgage protection cover may pay off the loan. GOV.UK's guidance for executors suggests asking the lender whether payments must continue during probate and checking for such a policy.
SwiftWill's will includes a general clause telling executors to pay debts and expenses from the residue. Because of section 35(2), that clause does not by itself make the house pass free of its mortgage, and the interview has no separate option to do so. If you want the mortgage cleared from other assets, or want to share the burden between children in a particular way, ask a solicitor to draft it. More on debts: what happens to debt when you die.
How does the residence nil-rate band apply?
The residence nil-rate band adds up to £175,000 to your inheritance tax threshold when a home, or a share of one, goes to direct descendants. It sits on top of the £325,000 nil-rate band, which HMRC's published threshold table shows fixed until 5 April 2031. Key points from HMRC's residence nil-rate band guidance:
- Direct descendants include children, grandchildren, stepchildren, adopted and fostered children, children for whom you were appointed guardian or special guardian, and their spouses or civil partners. Nephews, nieces and siblings do not count.
- The band tapers away by £1 for every £2 the estate is worth over £2 million.
- The descendant can be an adult or a child, but inheriting only counts if they become entitled when you die. If they must first reach a certain age, the home is held in trust and whether the band applies depends on the type of trust.
- Any unused band can pass to a surviving spouse or civil partner's estate, and HMRC looks at each spouse's share of a jointly owned home separately.
Everything you leave to your spouse or civil partner is normally free of inheritance tax, as GOV.UK's passing on a home guidance explains. Our inheritance tax calculator gives a rough figure; estates near the thresholds should take tax advice.
What if your children are under 18?
They can inherit the home, but trustees must hold it for them. Section 1(6) of the Law of Property Act 1925 says a minor cannot hold a legal estate in land, so your executors and trustees keep the property, or sell or let it and hold the money, until the age your will sets.
- Appoint at least two executors and trustees. Money from selling land held on trust must be paid to at least two trustees, as HM Land Registry's Practice Guide 24 explains.
- Choose guardians for the children as well. Trustees look after the money; guardians look after the children.
- Decide the age. When you have children, SwiftWill's interview asks you to choose 18, 21 or 25; our guide to trusts in wills explains what each means and when a solicitor-drafted trust is the better choice.
More on guardians and ages: writing a will with children.
Can you leave your house to stepchildren?
Yes, but only by naming them. Stepchildren do not inherit under the intestacy rules unless they were legally adopted, as our guide to whether stepchildren can inherit explains. For inheritance tax, HMRC counts a stepchild as a direct descendant, meaning a child whose parent is or was your spouse or civil partner. A stepchild you treated as a child of the family can also apply to court under section 1 of the Inheritance Act 1975 if your will does not make reasonable provision for them.
What if your spouse or partner still lives in the home?
This is where most plans need care, because what suits your partner and what protects your children can pull in different directions.
| Approach | What happens | Main risk |
|---|---|---|
| Everything to your spouse, then children | Your spouse owns it outright; spouse exemption applies; unused allowances can transfer | Your spouse can later change their will, so your children may not inherit |
| Your share straight to your children | Children co-own the home with your partner; residence band may apply | Your children become co-owners and could ask a court to order a sale; possible Inheritance Act claim |
| Life interest trust | Partner can live there for life; your share then passes to your children | Needs tenants in common and solicitor drafting; trustees must manage it |
With a life interest for a spouse or civil partner, HMRC treats the trust property as part of the spouse's estate, so the spouse exemption applies on your death (IHTM11061). HMRC's trusts guidance gives an example where a house left on such a trust passes to the children on the wife's death and her estate claims both residence nil-rate bands. An unmarried partner gets no spouse exemption, and GOV.UK recommends legal advice when you share a property with someone who is not your spouse or civil partner.
What is sideways disinheritance?
Sideways disinheritance is when your estate goes to your partner and then, through their later will, to someone you did not intend, such as a new partner or their own children, leaving your children with nothing. It is most common in second marriages and blended families. Mirror wills do not prevent it, because either person can change their own will after the first death, and a later marriage revokes an existing will under section 18 of the Wills Act 1837 unless it was made in contemplation of that marriage. The usual protection is a life interest trust. SwiftWill's suitability check sends people with children from a previous relationship who want to protect them while providing for a partner to a solicitor. See second marriage with children.
Should you give the house to your children while you are alive?
Giving the home away during your lifetime is a different decision from leaving it in your will. GOV.UK's passing on a home guide says that if you keep living there without paying the going rate in rent and your share of the bills, it is a gift with reservation and is still counted in your estate. If you move out, the seven-year rule applies. Councils can also treat a gift as deprivation of assets if avoiding care charges was a significant reason for it, as our guide to care home fees and your will explains.
What can SwiftWill's will do with your home?
SwiftWill's will can leave your home, or your share as a tenant in common, to your children by a specific gift or through percentage shares of the residue, name substitutes or pass a share to a child's own children if they die before you, appoint guardians, and hold a young beneficiary's share until 18, 21 or 25. It does not draft life interest trusts, directions about who bears the mortgage, or tax planning. Its suitability check recommends a solicitor if you share property with someone you are not married to or in a civil partnership with, have children from a previous relationship you want to protect, need any kind of trust, or want to plan around inheritance tax on an estate above the thresholds. If none of those apply, you can start your will and preview it free.
Sources
- Administration of Estates Act 1925, section 35
- GOV.UK: Joint property ownership
- HMRC: Work out and apply the residence nil rate band
- HMRC: Inheritance Tax thresholds and interest rates
- GOV.UK: Inheritance Tax, passing on a home
- HMRC: Trusts and Inheritance Tax and IHTM11061
- Law of Property Act 1925, section 1(6); HM Land Registry Practice Guide 24
- Inheritance (Provision for Family and Dependants) Act 1975, section 1
- Wills Act 1837, section 18
- GOV.UK: Identify the assets and debts of someone who died
Sources checked 24 September 2026.