If you are like a majority of people in California and across the United States, your residence is not only your most prized but also your most valuable asset. As a consequence, you likely desire to have your home “go to” or “pass to” a specific person (or persons) upon your death. You likely realize that you have the legal ability to give your home to a specific person (or persons) named in your last will and testament. However, you may also wonder whether there is a way in which you can convey ownership of your home to someone after you die without having to go through the probate process. The simple answer to this question is “yes.”
Create a Trust and Include Your Home as an Asset
A common way in which a personal residence is conveyed to another person without going through the probate process is via the creation of a trust. Trust agreements actually are complicated legal documents. While there do exist standard forms you technically can take advantage of for this purpose, you generally are best served seeking the assistance of a skilled attorney with a specific background in creating trusts for clients.
Technically speaking, by taking this course, your trust becomes the legal owner of your residence. Legally, you are identified as the trust grantor. You can also be a beneficiary of the trust during the course of your life. Through a trust, you can maintain occupancy of your home throughout the course of your life or until you voluntarily want to vacate the residence.
In creating a trust, you will designate a specific individual or individuals as the beneficiaries of the trust (in addition to yourself). This individual will be the person who is entitled to possession and use of your home after you die.
You are also legally able to take the process a step further. You can designate yet another individual to take possession (and ultimate ownership) of your residence after you and the immediate beneficiary have passed on. Technically, this individual would be identified as a successor beneficiary.
You need to discuss the difference between a revocable and irrevocable trust with a qualified lawyer. If you create an irrevocable trust, you do obtain some specific tax benefits as well as protection of the property from creditors. However, when the trust is irrevocable, you cannot backtrack and revoke or end it. Ownership of the residence truly leaves your hands and does so permanently when a trust is not revocable.
On the other hand, you can create a revocable trust which doesn’t provide the same protections against creditors. However, if it is in existence when you die, the residence will pass to the designated beneficiary without the need for probate. With that said, you can terminate this type of trust any time during your life (provided you have legal capacity to do so).
Add the Person You Want “to Get” Your Home to the Title
A simpler course of action you can take to convey ownership to a particular individual (or individuals) after you die is to include that person on the title to the real estate today. Specifically, you will want the title to the residence to create what legally is known as a “joint tenancy with a right of survivorship.”
Before you adjust title to your residence in this manner, you can obtain a written agreement with the person you intend to include on the deed. That agreement sets forth that you have the unassailable right to reside in the residence during your lifetime unless you elect on your own volition to move and vacate the property. This is an example of a legal document, of a contract, that you are best served having an attorney prepare.
Marital Property in California
Marital property laws in California play a role in the determination of where property goes after a married person dies. If a residence was completely purchased with funds acquired during a marriage, ownership goes to a surviving spouse. This is property that a deceased person cannot bequest to someone else after death without the express permission of the surviving spouse. Typically, both spouses’ names will be on the deed to the residence, with the joint tenancy with the right of survivorship language discussed a moment ago.
Consult With an Experienced Attorney
Depending on your particular circumstances, and those of the person (or persons) you desire to take full ownership of or benefit from your home after your death, you are encouraged to consult with a lawyer to ensure that you take the right approach to conveying an interest in your home to someone else after you die without going through probate. Such a consultation can be part of a broader, comprehensive estate planning effort.
You really cannot start the estate planning process too early. In fact, once you become an adult and begin to earn a living and start to gain different assets – including a home – the time has arrived to begin estate planning.