I Just Want to Put My Daughter’s Name On My Deed

NOVEMBER 5, 2012 VOLUME 19 NUMBER 40
We hear that request all the time. “I want to make it easy for her when I die — just put my daughter’s name on the deed,” client after client insists. When we resist, they think we are acting too much like lawyers.

There are no statistics out there, but we think that most of the time this arrangement works out just fine. But most of the time isn’t a very comfortable place to be. We counsel clients not to put their children’s names on the title to their property — any property, but especially real estate and most especially the home — while the client is still alive. Let us try to explain ourselves, and offer up some alternatives.

First, what do clients mean when they say something like “put my three sons’ names on the deed”? Do they mean that they want to put the property in joint tenancy, with the client and three children as co-owners? Or do they mean that they want to continue to own the property themselves, but have it pass automatically to the three sons on the client’s death? Because if they get us to put the property in joint tenancy, that is a completed gift now, not a contingent gift that becomes completed at death. If the client decides in two years to remove one of her sons, or to sell the house, or to leave one son’s share to his kids rather than his wife — it’s too late. The deed has been done, as the saying appropriately suggests. Any later change will require the agreement — and signatures — of all three sons.

That was the problem that faced Hazel Jackson (not her real name) in a case decided by the Arizona Court of Appeals recently. Hazel had asked her lawyers (not our firm) to put her daughter’s name on her deed, and they had prepared a deed transferring her Sun City winter home into joint tenancy between her and her daughter. A decade later, she figured out that she had made a mistake — she had meant, she said, to sign a “beneficiary deed” (more about those later) so that her daughter would receive the property easily at her death. She hadn’t meant to give her daughter a present interest in the home.

Hazel asked her daughter to sign over the interest that Hazel had inadvertently given to her, but the daughter refused. Hazel filed a lawsuit to compel her daughter to return the gifted interest, but the court threw out her lawsuit. The Court of Appeals agreed, ruling that unless Hazel could show that the deed she had signed was actually invalid (e.g.: not properly signed, not witnessed correctly, or the product of duress or fraud) the lawsuit was properly dismissed. Hazel’s “misunderstanding of the legal effect of the warranty deed is not a legitimate basis on which to invalidate the deed,” said the Court. Johnson v. Giovanelli, October 25, 2012.

Note that Hazel was arguing that she had signed a deed different from the one she intended to sign. Her claim would have been even weaker if she had argued “yes, I meant to sign a deed when I did — but things have changed and I no longer want my daughter’s name on the title to my house.”

The Court of Appeals decision does not explain what has changed between Hazel and her daughter to make her want to change the title to the house. We can only report that we see similar concerns raised from time to time — often because family relationships change, or a parent decides a child’s inheritance should be protected from spouses, children, or creditors.

What about the “beneficiary deed” that Hazel claimed she had meant to sign? Would that have solved the problem? Perhaps — it would at least be worth considering, and would have allowed her to change her mind a decade later.

Beneficiary deeds require some explaining, too. They are unfamiliar to many people — the very concept is only about two decades old (that’s very young in property and estate planning law, which was mostly laid down five or six centuries ago). Only about a third of the states have approved the idea — including Arizona, which was one of the early adopters, but not the first. We have written about beneficiary deeds before, and often prepare them for our clients. But they are not the perfect solution for every “put my daughter’s name on the deed” situation.

When is a beneficiary deed not the right answer? It is not the best way to handle children who can not handle money, or who receive public benefits. It can create more trouble than benefit in larger families (eight siblings owning equal interests in a property can be a formula for gridlock that even a Congressperson could admire). It may not deal very well with the possibility that a child dies before you do (would you want his share to go to his wife, his kids or back to your other children? What if he remarries first? What if he is in the process of getting a divorce?). But for Hazel, who apparently had only one child and who intended her daughter to receive everything outright, it might well have been the easiest and best answer.

What’s the other choice? A living trust. They aren’t the answer to all problems, either, but if you have lots of different pieces of property, or lots of children, or a desire to benefit children and others unequally, or a child with special needs, creditors, an unhappy marriage or other reasons not to leave property to them outright — in all of those cases a living trust is more likely to be the right answer for you. Let’s talk. But please understand that if we start the conversation with “I just want to put my daughter’s name on my deed” you’re likely to get a little pushback from us. It’s because we want to do a good job for you, and we have seen some things.

[By the way: much of what we say here also applies to your bank accounts, brokerage accounts, and other assets. We just wanted to focus on the deed to your house right now.]

21 thoughts on “I Just Want to Put My Daughter’s Name On My Deed”

  1. Pingback: Put Your Accounts in Your Daughter’s Name — What Could Go Wrong? | Elder Law Issues — Fleming & Curti, PLC

  2. Katherine Radovich

    Thank you! I have a daughter that I can trust. She always looks out for me. I am 84 and my husband just passed away three months ago. She has proven herself trustworthy. Thanks for your advice. It could be a problem where you have a child that trys to use you. She never wants anything from me. She and her husband have a big beautiful home. She is very kind hearted and looks after me.

  3. Shuxiang Quintero

    How to put my daughters name on the my property grand deed, becaus I want refinance my home, my credit not good. She can help me. She had good credit. My name and her name on deed.

    Thank you

  4. I would like paper work so i can show my mom who has put my brother on the deed to land and her home but she has two other kids she think he will be fair and let us go on the land and he will split the money from the sell af the house can you help me explane that is the wrong way to do it

  5. My mom has put my brother on the deed to her home and to land in colorado she has two other kids do me and my brother have any right to that land can i get any rights to it if she dies she said that my brother will be fare about it i dont trust him can she still get some kind of trust so i am not left out

  6. Hi, my stepfather wants me to take over the deed after he passes away, we’ve gone to a couple of state and city courts but none seem to know the right steps to take.. where do we start or who do we go see?

    1. Heidi:

      Not sure how you’ve missed the obvious. Talk with a lawyer. More to the point, help arrange for your stepfather to talk with a lawyer. Courts are not in the business of preparing estate plans, or deeds, or even giving advice about those topics.

      Good luck.

      Robert B. Fleming
      Fleming & Curti, PLC
      Tucson, Arizona

  7. Hello, House paid for. Daughter lives there. I get no rents. she pays all for house, maintenance.repairs, utilities bills. I want to put the tile in her name so she can benefits on her income tax. She pays the insurance, even though its in my name. She pays the house tax even though its in my name. I refinanced another house to buy her one…and she pays that refinance as if its the house that she lives in. She did a lot of repairs in that house and i want her to claim it this year as well as the interest she paid on the refinane of the other house. what can i do.

    1. Doris:

      Talk with your lawyer. You should make sure you protect yourself not only against the possibility that you and your daughter might not always see eye-to-eye, but also against the possibility that she might have legal or financial troubles down the road.

      Good luck, and we hope you and your daughter both thrive.

      Robert B. Fleming
      Fleming & Curti, PLC
      Tucson, Arizona

  8. I am trying to get her to buy it from me so i can paid of the refinance of the other property. Her credit score is low, but we are working on it. I want my refinanced house back to ‘0″

  9. I am not married and have only one child, a 25 year old daughter. I want to add her to my house title. Everything is being left to her on a will but I don’t want her to go thru probate for the house. The only concern with me adding her is, with her being on the title if someone sues her for any reason, can they go after the house?

    1. We had hoped that the article itself would provide enough information to make it clear that it is not a good idea to put your daughter’s name on the deed to your home. Please talk to a lawyer in your community about the risks and alternatives.

  10. I’m in Texas and my father died recently without a will. My siblings and I had to fill out and file an Affidavit of Heirship for his separate real property because we will sell this property (no one lives in this house). My mother’s house that she lived in with my dad is her Homestead. When we fill out the General Warranty Deed does a spouse need to be a grantor in this General Deed?

    1. Melissa:

      This is why we regularly repeat that we only know about Arizona law. You should talk to an attorney in the state where your father died (Texas, it sounds like). They should be able to answer your question.

  11. Mother died suddenly of stage 4 cancer and daughters name was not on deed at that time. Can daughter still be be put on deed as per mothers wishes? Mother has her on P.O.D. bank accounts that pay for mortgage. Daughter has no siblings and has made many repairs, painted exterior & interior plus landscaping of home in addition to living in home for 10 years & paying utilities for several years

    1. It’s amazing to us that this post — cautioning seniors against “putting their daughter’s (or son’s) name on their deed” — has consistently been read by people looking for permission to put their child’s name (or their own!) on a deed as joint owner as supporting that idea. It is not.

      People want to avoid probate. We get that. But adding a child’s name is to your real estate is not the right way to do that. There are at least two right ways to do it while avoiding probate, and one right way to do it that doesn’t avoid probate (but probably doesn’t cause that much difficulty, either):

      1. Check out the Arizona beneficiary deed statute. Your child acquires no interest in the property until your death, but receives it automatically at your death. But the beneficiary deed is not the right answer for everyone, and should involve talking to a lawyer first.
      2. Create a living trust. Hire a lawyer to do it, and make sure it is done correctly. Then transfer your title into the trust’s name. Voila! Probate avoided, the transfer you want is effected, and you can always change your mind later.
      3. Write a will. It DOES NOT avoid probate, but it is revocable and amendable, and the probate process is simply not as difficult as most people think it will be.

      NONE of these choices increases the child’s tax (which is almost always $0 anyway) or is subject to easier challenges by disaffected heirs or others. Putting your child’s name on the deed as a joint owner actually does increase potential tax liability, is probably irrevocable and makes no sense for most people.

      But your question is whether you can now put your own name on your mother’s deed after her death. No, except that you can probate her estate and (assuming she left the property to you, or you are the only heir at law) get your name on the deed with relative ease. Just talk with a lawyer.

      Note: this advice is written by an Arizona attorney about Arizona laws. Your mileage may vary if you live elsewhere, your mother lived elsewhere or the property is situated elsewhere.

      Fleming & Curti, PLC
      Tucson, Arizona

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