James, I know that I want my children to get the home and land when I die, so why not just give them a deed now so that they can avoid probate. They don’t care to let me live here and have promised to let me stay here as long as I like. – Tony
Tony, I understand your concern to make sure that the land you have worked so hard to pay for should end up with your kids, but just deeding it to them outright comes with certain problems that you should understand.
The first concern that I have when someone talks about deeding property to their kids is that the kids now own the property. Once your child owns the property, their liability can also attach to the property. So, if they are involved with a bankruptcy, divorce, or being sued for running over someone’s foot in the Wal-Mart parking lot, “your” property maybe a risk of being sold to pay for debts of your child.
Also, even if your child never has any liability concerns, the tax determent to deeding property while living is significant enough to reconsider that deed. If you transfer the property while you are living your children could be in for a large tax hit when they go to sell the property.
Simple estate planning can avoid these pitfalls. If you created a trust you could see that the children receive the home and land once you pass and even provide for grandchildren as well. Their liability won’t touch the property until it is theirs’ and by that point you will have passed away. They will also enjoy the step up in basis. This protects their interest in the home and avoids capital gains taxes. So if they choose to sell the home after you are gone, they won’t have that large tax liability.
If you are thinking about deeding your house to the kids, I would urge you to call today to set up a no-charge strategy session to find out how we can help. To learn more, check out our website, ElrodFirm.com.