Justin, Five years ago, I used a life estate deed to sign my home over to my three children to keep it out of probate court. About a year ago, my son died. I think it’s time to redo my deed to remove my son’s name—what will be involved? – Frank
Frank, I am sorry to hear about the loss of your son. Unfortunately, the news I have to share will not make the situation any better. You cannot change your deed now that your son has passed without taking his estate through probate court.
You probably used a life estate deed five years ago because, with that type of deed, you are able to pass on real estate to your children at your death without the necessity of probate, but as long as you are living, you retain the right to use the property without restriction. Life estate deeds are attractive for this reason.
But the situation you described with your son presents one of the scenarios where use of a life estate can backfire. When you execute a life estate deed, you actually transfer an interest in your property immediately, even though you retain use rights for your lifetime. That means you are no longer the sole owner and do not have the ability to make changes without the cooperation and participation of everyone you included on the deed. Because your son is no longer able to sign a new deed, you will have to take his estate through probate court to obtain permission to change the deed, and there’s no guarantee that you’ll be permitted to change it in the way you want. Your options will be limited by your son’s estate plan and his family situation.