No need to put daughter on deed

By McNichol & Tillem

Dear Len & Rosie, My husband passed away in 2004. Both he and I are on the deed to our home. I already have a living trust and a pour-over will made out with my daughter inheriting the home. If I changed the deed and had her name added to the deed, would this assure her that the house wouldn’t go into probate? Or should I leave the deed as it is right now? Maybe the house is worth about $350,000 or $400,000 now. What would the tax ramifications be for me and for her. -- Anne

Dear Anne, As a general rule, it’s a bad idea to put your daughter on the deed to your home. There are no take-backs. If she’s on the title to your home, the only way to remove her from the deed is if she signs it back over to you or dies. And you’re much more like to pass away first.

If your daughter is on the deed to your home, you have to get her permission to sell your home or borrow against it. And she may not be so willing to let you spend her inheritance. It’s also very important to know that if your daughter owns part of your home today, then her interest will be subject to the claims of her creditors. If she is responsible for an auto accident and her insurance isn’t enough to pay for the damages she causes, you could wind up with lien recorded against your home.

If you insist, you could take the home out of your trust, assuming it’s in the trust to begin with, and give it to your daughter either by making yourself and her joint tenants, or you could give her the home reserving a life estate for yourself. Either way, upon your death your daughter will own your home outside of probate.

But do you really need to do this? If you have a revocable trust and the trust leaves the home to your daughter upon your death, then your home is going to avoid probate anyway. Just make sure that your home is properly titled within the trust. To do this, go to the county recorder’s office and look up the “current vesting deed,” which is the latest recorded deed in the chain of title. Or have a title insurance company look it up for you. They’ll do it for about $10, or maybe even for free. The deed should say something like “Anne Smith, as trustee of the Anne Smith Revocable Trust dated 1/1/2009.”

If the deed says the home is owned just by you, it’s not in the trust.

Go see an estate planning attorney and either put your home into the trust or add your daughter to the deed (which we still don’t recommend).

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at

846 Broadway, Sonoma, CA 95476, 996-4505, or at www.lentillem.com. Len also answers legal questions each weekday, noon to 12:45 p.m., and Sundays, 4-7 p.m., on KGO Radio 810 AM.

Napa Valley Register Copyright © 2009