ALL THINGS REAL ESTATE Consult estate planner if Dad wants to avoid probate

Q: My 84-year-old father is a widower. All he really owns is his house, which is free and clear, and a Teamsters pension plan. He’s in good health now, but who knows about the future. My two brothers and I have talked, and we think it would be best for him to put my name on the title to his house. That way, if something happens to him, the house would auto matically become ours without having to go through a probate, which is what he really wants. How do we go about trans ferring title? Do we need a lawyer or can we do it ourselves?

A: Throughout my now lengthy career, I’ve gotten calls with questions like this several times per month on a consis tent basis. Once I figure out what they’re trying to do, I have the same response. I refer them to an estate planning attor ney who can give them all the available options and the good and bad of each. It is seldom, if ever, in the best interest of a parent to put their home in the name of a child as an estate planning vehicle. Here’s why.

The mechanics of transferring title to the house is easy, but first let’s stop and talk about this.

I presume the reason you want to “put my name on title” is that if or when your father dies, you would know what he wanted done with the property and distribute it to your siblings. Right?

To accomplish this purpose, all you have to do is be put on title as a joint tenant. Joint tenancy is a way two or more people can hold property. When one joint tenant dies, that person’s ownership interest automatically, instantly, passes to the surviving owners. The interest can not be conveyed to someone else through a will, trust or the laws of intestacy that apply to people who die without a will.

Having demonstrated how easy it is, I’d strongly advise your father and your brothers not to do it.

There are a number of reasons why your father should go about planning his estate in a more conventional manner.

Years ago it was common for people to put either their oldest child, or nearest child, on title to their house and their bank account. Then, if the parents became disabled or died, their bank account and home would automatically go to that child.

This worked fine in the days of primogenitor, when the oldest male child got all of the stuff anyway. But it didn’t work so well once parents decided to leave some of their stuff to people other than their oldest son, like the other kids, or when the parents later decided to change their estate plan and couldn’t without the kid signing off on the deed.

It especially didn’t work well when the parents trusted that their kid would voluntarily distribute the stuff where the parents had wanted it to go. Particularly when, after their death, the darn kid who got the stuff suddenly had amnesia with regard to his parent’s wishes.

And it really didn’t work when California’s Proposition 13 went into effect, causing reassessments of property taxes when property is conveyed in certain ways.

And it really, really didn’t work when the kid with the stuff found out that once he got the stuff, there could be expensive gift tax consequences to giving it away to his brothers and sisters.

I hope your dad will read this and get the point.

Probate has become a dirty word, mostly due to people trying to sell living trusts to people who don’t really need them. Probate is an efficient and pretty economical way to dispose of estates of relatively minimal value if it is handled properly.

In any event, if your dad really wants to avoid probate, there are myriad ways to do so. He simply needs to see an estate planning attorney.

Tim Jones is a real estate attorney in Fairfield. If you have any real estate questions you would like to have answered in this column, you can send an email to AllThingsRealEstate@TJones-Law.com.