QUESTION
Should my dad include a child on the deed to avoid a lengthy probate?
Asked on Nov 17th, 2011 on Estate Planning - Oregon
More details to this question:
My dad owns a house and 6 acres and has 5 children. He was told he should include a child on the deed to avoid lengthy probate, is this okay, and how is it done?
7 ANSWERS
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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No. You can't "include a child on a deed." A deed transfers an interest in property you are giving away a part of the property. This makes the property subject to any judgment against Child, makes it an asset in Child's divorce, makes it subject to Child's tax obligations. Property should be owned by the people who own it, and not transferred around the family like snickerdoodles. Then, which child? Because the others then won't inherit anything. That's a tough choice. On the other hand, probate is not difficult or expensive in Oregon, and it writes a final chapter to the decedent's affairs and closes the books. Probate is a good thing.
Answered on Nov 23rd, 2011 at 2:07 PM
There are ways to avoid the probate process, but putting one child on a deed (when there are several children) is not recommended. Your father may want to consider creating a Living Trust and then transferring the property to that trust. When a Living Trust is properly funded, it can avoid the probate process entirely, and still allow him the ability to direct the manner in which he wants his assets distributed upon his death.
Answered on Nov 18th, 2011 at 10:22 PM
Glen Edward Ashman
There are some pros and cons to this and it needs to be drafted by a lawyer. It involves some decisionmaking as to gift taxes, life estates, joint tenancies, etc., so there are options and choices that will need to be addressed.
Answered on Nov 18th, 2011 at 4:25 PM
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It is generally not a good idea to put another on title as it may negatively impact your homestead, availability to qualify for governmental assistance and if they have financial issues, you could lose the property. That being said the children may be named as pay on death beneficiaries. However, when children (more than 1 own property together) difficulties arise, as such, sometimes it is less costly to have the property go through probate and sold in the probate. Alternatively, a trust may be the answer. Your father should speak to an estate planning attorney about his options. We offer a one hour consultation with an attorney who will provide you with important information regarding your specific case and will able to advise you on the options that you should consider in determining your next steps for the small investment of $100. This is a significant discount from our billing rates.
Answered on Nov 18th, 2011 at 3:04 PM
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While putting a child on title of real property can help avoid probate, it may have significant negative tax consequences on both the child who receives property and the other children. A living trust is the most effective method for transferring property to your children upon your passing. You will avoid probate and give your children the most favorable tax treatment.
Answered on Nov 18th, 2011 at 3:04 PM
Tax Attorney serving Portland, OR
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Bullivant Houser Bailey PC
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He should not. He will create more problems than he solves. The child will be an owner and entitled to part of the sale proceeds if the house is sold. If the child has or runs into creditor problems, the creditors could force the sale of the house. After your dad's death, the child may choose to claim that the child was on title because your dad wanted the child to end up as sole owner and the other kids will have a bit of a fight to overturn it. The transfer also can disqualify your dad from Medicare if he needs it in the next five years. A revocable (living) trust is a better way to avoid probate. A transfer on death is another alternative that has some problems but not as many as adding a child as a joint owner.
Answered on Nov 18th, 2011 at 2:30 PM
The answer to your question depends on the all of the facts of your specific situation. No attorney can give you specific advice to your situation without knowing the entire situation. I can comment generally based on the information that you provided in your question. However, you should understand that the information contained in your question does not contain essential information needed to provide you with legal advice. This message is not intended to be legal advice for you and you should not consider that we have formed an attorney/client relationship. I am assuming that you are in Oregon and that Oregon law applies. You could add one or more children to the deed; however, a better solution would be to set up a trust and convey the real estate into the trust. The trust can provide for the sharing of the property among the children and put a person in charge after your father becomes disabled or dies. It also gives some durability to the plan; so, it does not get derailed in the future.
Answered on Nov 18th, 2011 at 2:30 PM