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Can You Pass Your Home Down Without Going Through Probate?

Published June 12, 2017 by Brady Cobin Law Group, PLLC

Using a life estate can help you pass down your home to heirs without going through probate, which is costly and time-consuming. Check with an estate planning attorney to make sure this is right for you.

A number of estate planning strategies are used to pass the family home down to the next generation, but just designating a beneficiary in your will isn’t always the best solution. As Reported In Kiplinger’s, “An Overlooked Way to Pass Down Your Home Without Probate: The Life Estate,” while the estate is being settled, the house requires maintenance, including utility bills that must be paid and possibly mortgage payments. A way to make this a smoother transaction could be the use of a life estate.

With this strategy, you (as the “life tenant”) retain the right to live in your home until your death. The property is then automatically transferred to the “remaindermen,” or your designated heirs. This can be advantageous for individuals or for couples who want to be sure that both parties can remain in the home for their lifetimes.

You’ll need to execute and file a deed to the property that records your status as the “grantor,” your remaindermen’s status as “grantees” and a clause on the deed that stipulates that you retain a life estate in the home. You should then update your property insurance policy to reflect the addition of new owners. As the life tenant, you’re still responsible for paying the mortgage, taxes, insurance premiums and maintaining the property. But even though you’ll have all the responsibilities of a full owner, your control over your home is complete. Once you add remaindermen to your property’s deed, you cannot just remove them without their consent. You also can’t sell or mortgage your home without the agreement of the remaindermen.

One potential drawback to a life estate is that a life estate ties up your financial interests with that of your heirs. For example, their divorce or bankruptcy could impact the property with a lien. It is also important to note that giving away assets through a life estate, may impact the timing of Medicaid eligibility and result in gift taxes for your heirs.

In addition to ensuring that you’ll remain in your home, it can make it simpler for your heirs to manage the logistics of your property after you pass away. For instance, you can use a life estate to make sure that your home goes to your children from a previous marriage while also guaranteeing that your spouse can stay for his or her lifetime, if you die first.

An experienced estate attorney can help you weigh the risks and benefits. Your chances for success with this method is increased, if you have a great relationship with the heirs and their families and that if your circumstances should change, everyone is on the same page with respect to working together.

Reference: Kiplinger (May 2017) “An Overlooked Way to Pass Down Your Home Without Probate: The Life Estate

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