Last month, we talked about giving your home to your children during your life time.  This month we will discuss property transfers that occur after death.

The following is a brief outline of the some of the methods used to transfer property after death:

1. Life Estate Deed: A deed retaining a life estate allows you to convey your ownership interest in your home to your children, but retain control of your home until you pass away.
2. Community Property Right of Survivorship: If a deed declares that your home is community property with a right of survivorship, your home will go to the surviving spouse without having to go through probate.
3. Revocable Living Trust: If you transfer your home to a trust, it is held by the trustee for the benefit of another.  When you pass away, the terms of the trust determine to whom the property will be given.
4. Will: A will is the legal expression of your desires as to the disposition of property after your death.  Your personal representative will transfer your home to whomever you have designated in your will.
5. Intestate Succession: If you have not done anything to transfer your home before your death, the Idaho Uniform Probate Code will designate to whom your home will be given.
6. Probate: Probate is the legal process whereby a personal representative is named and your property is gathered and re-distributed under the direction of the courts. Probate only applies to wills and intestate succession.
7. Affidavit of Heirship: If you have not used any of the above methods to transfer your home before your death; after three years, your heirs can record an affidavit of heirship, which will transfer the property to them.

These methods have specific rules that must be followed to accomplish the transfer of your home.  You may

want to seek the advice of an attorney to help choose the method that will be best for your situation.

The content here is not intended to be legal advice.  If you have a specific question, you should consult with an attorney.

Tom Packer is an Elder Care Attorney serving all of Southeast Idaho.  As a Life Care Planning law firm, the Elder Care Practice of Tom Packer offers a holistic solution for families struggling with the demands of an elderly loved one’s care.

Home Sweet Home

For most of us, our home is our biggest investment and our most valuable asset.  But, a home is more than just a number on a ledger sheet.  Within the walls of our homes, our families have lived, loved and learned the lessons of life.  Seniors frequently want to leave their homes to their families.

When is the best time to transfer the home to the family:  during life or after death?  Each transfer has specific rules and consequences that are important to understand.  Today’s Tip will discuss life-time transfers; Augusts’ tip will discuss transfers that take place after death.

A recorded gift deed will transfer the title of your home to your family.  The following are some of the consequences of transferring your home during your lifetime:

ADVANTAGES:

• Your family will not have to file for probate to obtain the title to your home.

DISADVANTAGES:

• Once your children own the property, they are in complete control—they can sell or mortgage your property without your permission.
• If your children are faced with bankruptcy or divorce, your home could be used to satisfy their creditors or be divided in their divorce.
• You will lose your homestead exemption, and your property taxes will increase.
• After gifting your home, you will be ineligible for Medicaid for 5 years unless your children reconvey your home back to you.
• When your family sells your home after you are gone, they will have to pay capital gains tax. If your property has appreciated in value, this tax could be substantial.

Wills, trusts and nonprobate transfers are used to transfer a home after death.  The consequences of using these methods will be the subject of our next Senior Tip.

The content here is not intended to be legal advice.  If you have a specific question, you should consult with an attorney.

Tom Packer is an Elder Care Attorney serving all of Southeast Idaho.  As a Life Care Planning law firm, the Elder Care Practice of Tom Packer offers a holistic solution for families struggling with the demands of an elderly loved one’s care.