Updated: Sep 8
First of all, stop right there. Many people think it is a good idea to put their child’s name on the deed to their home in an attempt to avoid inheritance/estate tax and probate, or to prevent the property from being seized to pay for nursing home expenses.
To the contrary, co-owning real estate investments with your children may actually create more problems than it solves and may not achieve your intended goals in the long run.
No “Take Backs”: If you want to sell or refinance your home, you must obtain signatures from each person who now jointly owns your home. If that person is incapacitated and you do not have powers of attorney to sign on his or her behalf, you may end up in probate court, asking a judge to permit you to sell your own home. If the person is of sound mind, but just refuses to sign altogether, you may end up in costly litigation trying to remove the co-owner from your deed. When you add someone to your real estate deed, the person becomes a co-owner with equal rights to the property, and if you have a falling out with the person, he or she is under no legal obligation to sign the title back over to you.
Creditors: Even in the best-case scenario where there are no underlying issues between you and your child, you are exposing your home to an unnecessary risk to your child’s creditors. A person’s primary homestead is typically protected from creditors, even in a bankruptcy, but when you add a person onto the deed who now co-owns the home as a secondary property, it is no longer exempt from collection efforts. In other words, your child’s creditors can place a lien on YOUR home, or a bankruptcy court can force the sale of your home to pay for your child’s debts.
Taxes: When you add another person to your deed, your home becomes a “gift” and the giver (you) will generally be required to file a gift tax return if the gift exceeds the annual gift tax exclusion amount, which is $15,000 per recipient (as of 2021). Furthermore, home values typically increase over time. So, if you purchase your home for $125,000, but then add your child onto the deed when the home is valued at $325,000 (an increase in value of $200,000), half of the gain (i.e., $100,000) will become taxable to your child when he or she sells the home. In Arizona, there is no death tax; therefore, that $100,000 gains tax would have been avoided had the homeowner allowed the property to transfer through inheritance instead.
Heirs of a Deceased Co-Owner: In the event your child predeceases you, you could end up paying inheritance tax on the portion of your own home, which you have prematurely “gifted” to your child. Additionally, depending on how the deed is worded (e.g., “tenants in common”), your deceased child’s heirs could have a legal claim to your home. In other words, if your child passes away before you and there is nothing in the deed reflecting that the home is owned with rights of survivorship back to you, you could end up losing a portion of your home ownership to your son-in-law or daughter-in-law. Lastly, if your child gets divorced, your home is now considered a part of your child’s community property and is subject to distribution in his or her divorce proceedings.
There are other options available for protecting your home, such as setting up a revocable living trust or recording a beneficiary deed, which only transfers ownership of your home upon your death. If you would like to discuss these options, contact Glover Court Solutions & Estate Planning. We are happy to offer FREE, no obligation consultations, reviews of your current estate plans, and case evaluations, and while, we cannot give legal advice, we can provide general legal information to help you navigate your legal matter(s). We also network with dozens of qualified attorneys throughout the Valley whom we would be happy to refer you to in the unlikely event we are unable to help.