CONTRIBUTED CONTENT — It’s true that if your child is on your deed as a joint tenant on your home, your home will not have to go through probate if your child survives you. At your death, your surviving child would immediately become the sole owner of your home without probate and with minimal transfer costs. 

Owning property as joint tenants with the person you want to inherit the property is probably the easiest way to pass property at your death. However, there are some risks and traps to be aware of before making that new deed. 

For example, a creditor of your child may try to seize your home because your child’s name is on your home as an owner with you. If your child owes someone money or files for bankruptcy, your home will appear as an asset that may be on the hook to satisfy their creditor claims.

Once your child’s name is on the deed to your home, you can only rent, sell or refinance your home if your child cooperates with you and signs the necessary paperwork. By placing a child’s name on your deed with you, you will have essentially surrendered the control of your home unless your child approves of what you want to do.

A child on the deed can effectively cancel your own decision to deal with your home as you want. I often hear parents say, “My Johnny would never give me trouble; he’s a good kid.” But remember that every person in a lawsuit is a “good kid” to their parents.  

If your child survives you and you have other children, the child on the home may claim that you gave the house to him or her alone. And since that child is the only one named on the deed as a joint tenant, that surviving child is legally right. Your other children will have an uphill – and often impossible – battle to get their share of the home.  

If you name all of your children as joint tenants with you on the deed, only your surviving children will share in the home at your death. If any child dies before you, his or her interest in the home will be gone. No interest in the home would trickle down to that deceased child’s children. In addition, as pointed out above, you will have exposed your home to all of your children’s creditors, lawsuits and claims, not just one child’s.

If you and your child were to die in a common accident, special problems arise. Finding out whether you or your child died first will determine who is entitled to your home. If you live longer than your child, you will be the surviving joint tenant, and your estate would own the house. In that case, your house would be given to your heirs. 

If the joint tenant child lived longer than you, his or her estate would own the house, and his or her spouse and children would be entitled to your home – not your heirs. If it cannot be determined who died first, the likely result will be that half of your home will be included in your estate and passed to your heirs, and the other half will pass to your child’s spouse or children. 

A costly and time-consuming lawsuit may be required to fix any of the problems listed above. Usually, such a lawsuit attempts to establish that you placed your child on the deed to your home only to avoid probate. Avoiding probate is not worth the cost and family tension that will be created if any one or more of these scenarios takes place.

Unless you have truly exceptional circumstances and have discussed your situation with an experienced estate planning attorney, you should leave your home in your name only – or better yet, in a trust. With a valid will and a simple probate procedure or a properly prepared trust, you can keep control of your home during your lifetime and ensure that it is disposed of as you truly intend at your death. 

Sean Sullivan, Andrew McCullough, Shelbi Post and Amy Nicholls are part of the estate planning team at the firm Brindley Sullivan, PLLC. Call 435-673-9220 to arrange a free consultation to discuss your estate planning needs.

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• Brindley Sullivan | Address: 50 E. 100 South Suite 302, St. George | Telephone: 435-673-9220 | Website.

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