Linda M. Toga of The Law Offices of Linda M. Toga, P.C. is an East Setauket, New York attorney with a general law practice focusing on estate planning, real estate, marital planning, small business services and litigation.
The Facts: Since my son is gong to inherit my house when I die, I was thinking about putting his name on the deed now as a joint tenant with right of survivorship so he would not have to probate my Will.
The Questions: What are the pros and cons of doing this?
The Answer: If your only reason for putting your son’s name on your deed is to avoid probate, I would recommend against doing it. The probate process is not particularly burdensome, time consuming or costly, especially if your son is your only beneficiary. In contrast, the problems associated with joint ownership could be significant, may impact both you and your son and could be costly to resolve.
For example, if you wanted to sell your house and your son did not consent to the sale, you might have to bring a lawsuit in order to force a sale. Your son’s consent would also be needed if you wanted to borrow against the equity you have in your house to cover medical or other expenses. Even if you and your son are in agreement about selling or borrowing against the equity in the house, your son’s creditors could place a lien on the house based upon judgments they may have against your son. Also, if your son is a party to a divorce action, his spouse can claim that the house is subject to equitable distribution as a marital asset. Finally, if your son applies for needs-based government assistance of any kind, his ownership interest in the house may preclude him from receiving benefits.
Given the risks to both you and our son of adding him as a joint tenant on your deed, you should consult an attorney before giving your son an ownership interest in your house.
This article first appeared in the October 15, 2009 issue of the Times Beacon Newspapers.