Should I Add My Child to My Deed to Avoid Probate Court?

 Posted on June 10, 2025 in Real Estate Legacy Planning

If you are a homeowner in Montgomery, Illinois, you may have heard the following advice: "Just add your child to the deed, and the house will not go through probate!" For many families, the goal of doing this is to avoid the delays and expenses of probate court with what seems like a simple, low-cost solution. 

However, while this strategy may appear straightforward, it can lead to unintended legal and financial consequences, making it far less cost-effective in the long run. To give your valuable assets airtight protection, talk to our Montgomery estate planning attorney. 

What is the Goal Behind Adding a Child to the Deed?

Most parents who add a child to their deed do so to avoid the probate process after death. In Illinois, probate is a court-supervised process that can take six to 18 months, delay the transfer of property, and result in additional court costs and legal fees. Understandably, many families want to avoid it. However, adding a child to your deed is not the ideal solution.

Here are the major risks and disadvantages of adding a child to your deed:

Loss of Control

Once your child becomes a joint owner on the deed, you lose the ability to sell or refinance the property without their written approval. In effect, you have surrendered part of your ownership rights and control, despite still living in and maintaining the home. 

Exposure to Your Child’s Creditors

If your child has outstanding debts, legal judgments, or goes through a divorce, their ownership interest in your home becomes exposed. At the very least, a divorcing spouse’s attorney may argue that your home is a marital asset subject to division. Creditors, ex-spouses, or even attorneys involved in the divorce could attempt to place a lien on the property or force a sale in order to recover debts, including unpaid legal fees.

Capital Gains Tax Issues

When a child inherits property through a trust or a will after a parent passes away, they usually receive what's called a "step-up in cost basis." This is a tax benefit allowed by the IRS that can significantly reduce or even eliminate capital gains taxes when the property is later sold.

When a child inherits property through a trust or a will, they usually receive a "step-up" in cost basis, meaning capital gains taxes on a future sale are minimized. But if they are added to the deed during your lifetime, they do not receive that benefit, potentially leading to significant capital gains taxes later. 

In short, by adding your child to the deed now, you could unintentionally cause them to owe thousands in taxes down the road. Using a trust or a will allows them to inherit the property with this valuable tax benefit intact.

Medicaid & Long-Term Care Concerns

If you require Medicaid for nursing home care, the transfer of your home to your child could result in a penalty period. The government looks back five years for any transfers of assets and could disqualify you for benefits.

A Living Trust is a Better Solution for Keeping Your Home Out of Probate

Rather than adding a child to a home’s deed, many families choose to create a revocable living trust for the following reasons: 

• You keep full control of the property during your lifetime.

• Upon your death, the home transfers directly to your child (or other beneficiaries) without going through probate.

• The trust protects your child’s inheritance from divorce, lawsuits, and financial trouble.

• You avoid gift tax issues and preserve capital gains step-up advantages.

A trust-based plan is private, efficient, and designed to protect your family both now and in the future.

Example: Plainfield Homeowner

Let us say Margaret, a widow in Montgomery, owns a home worth $300,000. She wants her daughter to inherit it without probate, so she considers adding her daughter to the deed. But if her daughter divorces or files bankruptcy, that share of the home could be pulled into legal proceedings.

Instead, Margaret creates a living trust. She keeps full control, and upon her death, the trust transfers the home smoothly to her daughter. No court, no delays, and no risk of third-party claims during her lifetime.

Talk to an Aurora, IL Estate Planning Attorney About Your Home

While it might seem convenient to just add someone to the deed of your home, the long-term consequences can be serious and expensive. Before making any changes to your property ownership, consult with an experienced estate planning attorney.

At Gateville Law Firm, we help Aurora-area families protect their homes and assets with the right legal tools without risking unnecessary taxes, court delays, or financial threats. Call 630-780-1034 or visit our Kendall County, IL estate planning lawyer to learn how we can help you create a plan that avoids probate, protects your home, and gives your family peace of mind.