How a Trust Can Be Beneficial if You Own a Home


Many parents believe that by adding a child’s name to a property deed, they can pass along the property outside of probate. Unfortunately, those who act on that belief often find they have invited more problems than they have avoided.


This is because when more than one person owns property together and they are not married. The property that is owned is referred to as tenants in common. This means that if one of the owners dies, his or her ownership share does not transfer to the other owner. It goes to the deceased owner’s heirs through probate.


This problem can be avoided if the deed lists the property as owned by joint tenants with the right of survivorship or if the deed has similar language signifying survivorship rights. Enlisting the help of an attorney with estate planning knowledge would be advisable to pass your property on outside probate.


However, there are some reasons why it may not be advisable for you to deed real estate to children, with adverse tax consequences topping the list. This is because deeding property to children is actually considered a gift, and the cost basis for that gift is what you paid for your home.


Example: say you paid $150,000 for your home and it is now worth $550,000. You add your children to the deed, which the IRS deems a gift. After you die, the children sell the home for the market value of $550,000. They will be taxed on the difference between the cost basis of $150,000 and the sale price of $550,000 – or $400,000, minus the cost of the sale. That’s a big tax burden for your children.


Another solution would be, if your children inherited the property via your will, then sell it using the same scenario above, they would owe no tax on the sale because their cost basis is what the property was worth when they inherited it (current market value of $550,000).


If the idea is to leave property to children while avoiding probate, you can do so by creating a simple trust and titling the property in the name of the trust and naming your children as trust beneficiaries. You avoid the problems and costs that the property passes outside probate in a tax-advantaged way.


This article is a service of the Law Office of Keoni Souza, LLC, an estate planning law firm in Honolulu, Hawaii. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That's why we offer a Family Wealth Planning Session, ™ during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by contacting our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.


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All information available on this website is for informational purposes only and is not legal advice. You should contact an attorney directly regarding your specific situation. The use of and access to this website or the transmission of information via email or through this website does not create an attorney-client relationship between the Law Office of Keoni Souza, LLC and any users or any other party. Transmission of information via email or through this website may not be secure, therefore confidentiality cannot be assumed.  By using this website or transmitting information via email or this website, the user agrees to this information being collected, stored, or transmitted to a third-party.

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