I cannot tell you the number of times I have heard from someone that they were told by [insert name] that if they put their spouse or child on the deed to their house that they will avoid probate. This is not the whole story though, and if you aren’t prepared, you could be setting up your loved ones for a disaster down the road.
The reality is that holding property jointly with rights of survivorship means that at the death of one of the property owners the property is passed to the other property owner, BUT, this does not completely avoid dealing with the probate court.
An estate tax return will need to be filed within 6 months after the date of death regardless of whether or not someone else is on the deed, and fees may need to be paid to the court in order to get a release of the tax lien on the property. If this isn’t done, your family could end up scrambling to get it done in the future and may not be able to close on time as a result.
Additionally, probate is not necessarily avoided entirely if the house is in survivorship. The survivor on the deed may have the property included in their probate estate at their death. Unfortunately, some parents end up putting one or more of their children on the deed when their spouse passes away in an attempt to avoid probate at the surviving parent’s death. This is very dangerous, because the house can then be subject to their kid(s)’ existing or future creditors. What if one of the kids gets divorced? What if they get sued? What if they get into creditor trouble? These threats could end up really hurting the surviving parent.
So, if you want to avoid probate and pass the house to your spouse at your death and/or your kids at the death of the survivor of you, consider discussing the use of a living trust with your estate planning attorney.