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How to Pass the Family Home to Your Children

Troy Werner and his family

Written by Troy Werner

Troy Werner has been an indispensable asset to The Werner Law Firm since joining in 2009, providing exceptional legal service to its clients.

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POSTED ON: August 14, 2023

It’s perfectly normal for aging parents who are currently completing their will along with their lawyer’s guidance, to leave the family home to their children.

Family home ownership is a part of the American Dream. It is often a family’s largest asset and a means of gaining an economic foothold. Many families who choose to leave their homes to their children hope to avoid probate, the article “Leaving Your Home To Your Kids While Avoiding Probate Litigation” from Realty Biz News focuses on this. Probate is the court-supervised process where a deceased person’s assets are examined, the will is reviewed, and beneficiaries and the executor are determined.

Probate was designed to ensure that potential creditors can pursue claims against the estate and provide a forum to identify the correct beneficiaries who should receive the deceased person’s property. Probate is more common when there is no will or when the bulk of a person’s property has been left to a third party, such as a significant other, a second spouse, or an organization. However, this process is slow. It takes an average of over a year in California. It costs typically between $10,000 - $20,000 when all is said and done. And the worst part? The children usually do not actually get full control over the assets until AFTER the probate case is concluded.

How can you ensure that the family home you want to leave to your children ends up with your children without having to go through probate?

The three most common ways of gifting the family home to another person are through a living trust and a will, or titling the property deed. An estate planning attorney can help plan this as part of your entire estate plan.

A will is a legally binding document outlining what you want to happen to your home and all of your assets. The people named as recipients of real estate and any other assets are known as beneficiaries. The will goes through probate to validate the will, in case there are any questions about your instructions. Any outstanding debts must be paid before assets can be distributed.

A living trust, also called a Revocable Trust, distributes assets, including homes. Once the living trust is created, assets can be added to it. You’ll still own and control the assets while you are living. However, once you pass, the items are transferred to the trust. The language of the trust will determine when and how assets are passed to beneficiaries.

If you create the trust but neglect to retitle the deed, your home will go through probate upon your death. If you plan to use a living trust, prepare one as soon as possible and retitle any assets you want to place in the trust once the trust is created. Assign a trustee who will be in charge of following instructions in the trust.

Modifying your home’s deed is another way to pass your home to family members. Depending upon your state, you may be able to change the deed to a Transfer of Deed or TOD, which gives you complete control of the home and the ability even to take out a reverse mortgage on your home if you need funds. You can also retitle the home to Joint Tenant with Right of Survivorship. However, any decisions about the home, like a reverse mortgage or a home equity loan, must be approved by the joint tenant.

Passing on the family home to children should be done with the help of an experienced estate planning attorney. There are tax implications to be considered, as well as the family’s dynamics. For some families, this is a welcome and sensible decision. However, in others, there may need to be certain protections put into place to prevent family disputes and possible litigation.

If you have an issue with a family home in probate, an experienced probate attorney lawyer can help you navigate the process and figure out a game plan to help with the home.

If you have any probate questions, schedule a free appointment with us through our online appointment page. We would be happy to see how we can help.

You can also read reviews from some of the hundreds of clients we have helped over the years.

Reference: Realty Biz News (July 12, 2023) “Leaving Your Home To Your Kids While Avoiding Probate Litigation”

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