Family conflict: I've gifted my house to my child but I want to still live there – what are my rights?

You may wish to gift your house to your child in order to protect your home from care home fees, but what happens to the house if your relationship with your child breaks down? Can you get your house back from your child?

The short answer is no, not without your child's agreement. The alternative option, if it is appropriate for you to gift your home to protect the home from care home fees in Scotland, is to gift your home to a trust. A trust can provide security for you and your home in the event that you and your child fall out.

Gifting your house to your child

Gifting your house to your child is one option to protect your home from care home fees. Your child then becomes the legal owner of your home and you need them to agree that you continue living in the property. This risks losing security of the roof over your head if the relationship with your child breaks down, such as if your child later met someone who causes upset in the family. Unless your child agrees to do so, you cannot force your child to transfer the property back to you, and your child would have the power to ask you to move out and to force a sale of the property. Additional documents can help but may not fully protect against those risks.

Gifting your house to trust

If you wish to gift your house to protect against care home costs, a gift of your house to trust has a number of advantages over an outright gift to children. This option gives you greater security, as a gift to a certain type of trust can ensure that you have a continued right to live in the property. With careful consideration as to who should be the trustees – who would then be in control of the house – you can have more control over what happens to your house in the future, such as if it is to be sold for you to downsize. It also gives you flexibility to change your mind as to who should ultimately inherit your house in the event of a relationship breakdown with your children.

There are, however, other risks associated with both of the above options and there are various compliance and administration matters that need to be considered if you wish to proceed with gifting your house to protect from care home fees in Scotland. We would therefore strongly recommend taking legal advice before you decide to make a gift of your home.