Should I add my son to the deed if it is in the will that he will get the house?

1 answer | Last updated: Sep 14, 2017
A fellow caregiver asked...

My house is in my husband and my name. He is my second husband so I have a pre-nup that states that if I die he gets to stay here as long as he wants or until he dies. Then it all goes to my only child. Should I add my son to the deed to avoid probate or does that also have tax ramifications? The deed is set up as tenancy in common.

Expert Answers

Frederick Hertz is a lawyer, mediator and author based in Oakland, California whose work focuses on property co-ownership and financial relationships between siblings, families, spouses and domestic partners, business partners, friends, and unmarried couples. He provides both transaction and negotiation counsel and also serves as a mediator and arbitrator in these areas.

The issue here isn't tax, but rather, the consequences of adding your son to the title now. If you add your son to the title now, then he is an owner NOW -- not just upon your death. And, he's an owner with full rights of ownership -- including the right to live there, and to force the sale of the property if he wants his share of the equity now. I don't think is what you or your husband want to happen. The solution is to create a living trust, that provides that your husband gets to live in the house after your death, after which time it passes to your son. That avoids probate and is the easiest way to accomplish your goal. You should meet with a local probate attorney who can draft the required documents for this task.