WALTEMATH LAW OFFICE

Deed And Probate Avoidance

I have had many clients ask me if they should put their children on the deed to their home.  This is not a good idea.  You must understand that if you sign a Quitclaim Deed, and you record that deed or deliver it to the grantee on the deed, you are giving away an interest in your home (maybe the entire interest in your home) IMMEDIATELY.  You are making a gift of your home which may need to be reported to the IRS.  If you give any interest in your home to anyone else, you will need his or her permission to sell your home, refinance your home, obtain a reverse mortgage, or even contract for services on the home. In addition, if the child has creditors, the child’s creditors may be entitled to file a lien on the home.  There may also be capital gains issues when the house is sold.

Most often clients do not intend to give away an interest in their home immediately when they sign a deed; they want to pass the house to their children upon their death.  If the intent is to pass the title to your home upon your death, it is better to use a Beneficiary Deed.  A Beneficiary Deed does not take effect immediately and it is revocable at any time before the death of the owner(s).  The Beneficiary Deed is effective on death only.  An owner may name one grantee or multiple grantees on a Beneficiary Deed, in other words, you can leave your home to all your children on a Beneficiary Deed or to one person.  The grantees will take an equal share of the home unless specified otherwise.  If one grantee-beneficiary dies, the surviving grantee-beneficiaries will receive the deceased beneficiary’s share (it will not go to their children). If you name multiple beneficiaries they must all be on one deed because if there are multiple executed and recorded beneficiary deeds, the last one executed is the only one that is effective.  A subsequently executed Beneficiary Deed that is recorded before the death of the owner revokes all prior Beneficiary Deeds. 

If you use a Beneficiary Deed, you as homeowner retain total ownership of the home until your death.  The grantee’s permission is not required to obtain a loan, sell the home or contract for services on the home.  A Beneficiary Deed will transfer the home at the owner’s death without probate.  A Beneficiary Deed is sometimes called a “transfer on death deed.” 

Before we had the ability to use Beneficiary Deeds, many people established Revocable Living Trusts to pass title to their homes upon their death without probate.  A Beneficiary Deed will accomplish the same result, in a more simplified way, and it costs less than a Revocable Living Trust.