Ways to Avoid Probate on Your Home by Martin Zevin, PA

Wills & Trusts
Ways to Avoid Probate on Your Home

Currently, you may own your home alone or jointly with your spouse. Your intention is to leave your home to your child or children when you and your spouse pass away. If you only have a Last Will and Testament (or if you die without a Will), then your children will need to go through the probate process in order to inherit your home. Therefore, many people choose to put the names of their children on the Deed; however, this can often be a mistake, particularly if it is not done properly. If you add a child’s name to the Deed, as a joint tenant with right of survivorship, this could affect your ability to claim a full homestead exemption. In addition, you lose the full control of your property and can only sell it if your child agrees and signs all closing documents. In addition, if your child files for bankruptcy or has a judgment entered against him or her, your home can be adversely affected. Therefore, most lawyers, including myself, recommend against having your child as a joint tenant with right of survivorship.

Another form of ownership is called a “Life Estate Deed.” This involves a Quit Claim Deed transferring the property to your child but retaining a life interest. This allows you to continue to claim your full homestead exemption and gives you exclusive possession of the property for the rest of your life. This also avoids probate when you die; your child only needs to record your death certificate and will then own the property. However, if, God forbid, your child dies before you, then his estate will be the owner of the property and probate will be required.

In addition, there are two types of a Life Estate Deed: regular and “enhanced” (also sometimes referred to as Lady Bird). The regular Life Estate Deed will require that your child join in any sale, financing or other changes on the Deed; therefore, you have lost complete control and cannot take your child’s name off the Deed if you choose to do so. The enhanced Life Estate Deed, however, gives you the sole right to sell the property during your lifetime or make any other changes to the Deed without the permission of your child; therefore, this is definitely the preferable form if you choose to do a Life Estate Deed. There is very specific language that is required on the Deed; therefore, you should not attempt to do this on your own. Even with the enhanced Life Estate Deed, however, there can still be problems in the event that your child has a bankruptcy or outstanding judgment. If your child is currently undergoing financial problems or challenges, the Life Estate Deed may not be a good idea.

The other way to avoid probate on your home is to do a Revocable Living Trust. The Trust takes the place of your Will regarding your home and any other assets you choose to put into the name of your Trust. At the time that the lawyer prepares your Revocable Living Trust, you would also sign a Quit Claim Deed transferring the property to you as Trustee of your Trust. If you are married, you can be Co-Trustees. You would still keep your homestead exemption and maintain complete control of the property during your lifetime; upon your death (and the death of your spouse), you would provide in the Trust how you want the property distributed. You could always change the Trust by doing an Amendment without changing the Deed. This not only avoids probate of your property but also avoids any of the risks involved with putting your child’s name on the Deed.

Whenever you are considering any changes to the Deed on your home (or any other property you may own), it is important to consult with a lawyer to discuss all of the options and risks.

Please feel free to call me for a free personal or phone consultation regarding any issues pertaining to Wills, Trusts, Estates and Probate. I am also available for free consultation regarding personal injury claims or car insurance coverage.