Deeds 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, pursuant to gift tax rules.  In addition, if there is a mortgage on your home, you will be in violation of the “due on sale” clause.  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 you add someone to the title to your home and that person has creditors, their 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 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 title to your home upon your death, you should have an attorney create a Beneficiary Deed.  A Beneficiary Deed does not take effect immediately but upon your death and it is revocable at any time before your death.  You still own your home 100% until your death with a Beneficiary Deed.  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, or any court interference.  A Beneficiary Deed is sometimes called a “transfer on death deed.”  To place anyone on a deed, quitclaim deed, warranty deed or beneficiary deed they must be 18 years of age or older.

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.

Tamra K Waltemath

Tamra K Waltemath

This article was written by Tamra K Waltemath of Tamra K. Waltemath, P.C.  This information is for general informational purposes only and does not constitute legal advice.  For specific questions, you should consult a qualified attorney.  Tamra K. Waltemath is an elder law attorney focusing on wills, trusts, estate and trust administration, probate and non-probate transfers, guardianships and conservatorships.  She can be contacted at:  Tamra K. Waltemath, P.C., 3843 West 73rd Avenue, Westminster, CO  80030; 303-657-0360; or visit her website at: www.WaltemathLawOffice.com.

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