Written by Soo Yeon Lee, Esq.
As I sit down with clients to discuss their future plans, one of the most common questions I get is about the best way to leave a home to their children. A home is the largest asset for most families along with 401(k) or IRA, and often times it is the only real estate. The best way to do this for each family depends on many factors. In this article I will share available options as well as some of the pros and cons of each option, which should be explored further and carefully considered with your legal counsel.
Will
You can leave home (or any real estate) to your children in your will. This means that you will be the owner of your home until your death, and in order for your children to take legal ownership of the home (i.e. getting their names on the deed), they will have to go through “probate.” (Probate is a court process.) Once the will has been probated, your children will receive title to the property. If they want to sell the property, they will either do this through the probate process, or they can sell after they receive title to the property. The downside of this is the usual downside of a probate process – the time and money it takes is substantial.
Trust
If you set up a trust and if the trust owns the real property, then probate is not necessary. This is because the ownership transfer will occur pursuant to the terms of the trust. Thus, using a trust is a convenient way to transfer property without having to go through probate. However, avoiding probate for the purposes of transferring your home to your children is the only benefit that a potential trust can provide, otherwise a trust may not be necessary.
Joint Tenancy with Right of Survivorship
There are three ways for a married couple to own a primary home: tenancy by entirety, tenancy in common, and joint tenancy with the right of survivorship.
The first, tenancy by entirety is the most common method for a married couple. The main difference between the other two is that joint tenancy has the survivorship feature. This method allows you to add your children to the deed as joint owners while you are alive, and upon your death the children become owners of the property as surviving joint owners by operation of law. It could be a simple way to handle a transfer, but you will lose the benefit of tenancy by the entirety and there are other issues that will affect not only yours but your children’s planning. Therefore, despite the seeming convenience, this may not be the best option for you. Please do not make this decision without legal counsel.
Transfer on Death Instrument
This is relatively new statutory creature. This allows you to name a beneficiary (your children) for your home and is a legal document you record with the Recorder of Deeds of your county. Your children do not become owners of the property now, but upon your death they become owners of your home. This document has the legal characteristics of a will. Therefore, you will need to have two witnesses (who are not your children) and a notary public in order to execute this document.
Conclusion
There are pros and cons to each of these options that cannot be explained without knowledge of your particular situation. Planning for your home and deciding on the best option for the transfer of ownership is an important decision. The good news is that the decision-making process is fairly simple with good counsel and it can be done at a fairly reasonable cost. Don't hesitate to contact Mauck & Baker at 312-726-1243 if you need dependable counsel for the transfer of your home.
The information contained here has been prepared for informational purposes only and is not legal advice. This material describes issues in general terms, and good legal advice required detailed analysis of particular facts and circumstances. You can contact a Mauck & Baker attorney at (312) 726-1243.