Ironing out the problems of leaving a home for future generations

Question

How can I leave my home to my children and grandchildren without them selling it once I’ve passed away?

Answer

Many people have a family home or holiday home they would like to keep in the family and pass down from generation to generation. It is a noble idea. But if it is not structured properly it can easily lead to conflict, resentment and long-term family drama.

There are two key issues you need to manage if you do not want your home to be a source of family conflict. The first is control (who gets to decide what happens to the house), and the second is liquidity (where the money comes from to transfer ownership and run the house).

Control

If your children inherit the property in equal shares, you have in effect created a small property partnership, but without a partnership agreement. This is where problems often begin:

• Who gets to live there?
• Who pays the insurance?
• Who pays for maintenance and repairs?
• What happens if one sibling emigrates, divorces or has a cash crisis?

Before you even look at legal structures, it is important to carefully consider the practical rules you want in place:

1. Who is meant to use the house (one child, all children, grandchildren)?
2. Is it a primary residence or a family holiday home?
3. How long do you want it kept (10 years, until grandchildren reach a certain age, or as long as possible)? and
4. Who will pay the monthly and annual costs?

Liquidity

When someone dies there are immediate costs. They can include executor’s fees, valuations and, sometimes, estate duty and capital gains tax. If the estate does not have enough cash, the house may need to be sold just to cover these expenses.

A home can be emotionally priceless but financially heavy. Costs such as rates, levies, insurance, security and maintenance continue regardless of who owns it.

Many heirs only realise this once they start running the numbers. So, the real question is not how to stop them selling the house, but how to make it workable for them not to sell. Some practical solutions include:

1. Set up a ring-fenced liquidity plan

This can be done by earmarking a life insurance policy or a set of investments specifically to cover estate costs and property expenses for the first 12 to 24 months. This takes immediate cash pressure off the children and gives them time to settle the estate and decide what they want to do without being forced into a rushed sale.

This does not guarantee the house will be kept forever. But it does prevent the common outcome of “we have to sell because we need cash now”.

2. Set up a testamentary trust

A testamentary trust is created in your will and only comes into effect when you die. The trust can own the home and allow beneficiaries to use it under rules that you set.

This is often the cleanest way to deal with co-ownership pressure, because the house is not owned directly by siblings. It is owned by a structure that is managed by trustees.

This is a great solution because it will prevent one beneficiary from forcing a sale. It sets clear rules about who may live there, whether it can be rented out, how expenses are paid and when (if ever) it can be sold. It can also protect vulnerable beneficiaries such as minors, spendthrifts or family members going through messy divorces.

If your goal is genuinely multigenerational, a testamentary trust is often the best fit – but only if you also provide liquidity to help cover the running costs of the property.

3. Set up an ‘inter vivos’ trust while you are alive

Instead of creating the trust at death, you create it during your lifetime and transfer the home into it now.

The big advantage here is that the family gets used to the rules while you are still around to guide the process. Banking and governance will be in place, so there is less shock and confusion after death.

The downside is that transferring the property can trigger transfer costs and potential tax consequences, depending on how it is done. You also need to be comfortable giving up some direct ownership and control as trustees must act according to the trust deed.

This option is usually best suited to families who are strongly committed to keeping the home in the long term and have the resources to maintain the structure properly. DM

This story first appeared in our weekly DM168 newspaper, available countrywide for R35.