For most families, a home is the most valuable asset they own-and the most emotionally important. Yet without proper planning, that home can be tied up in probate court for months (or years), draining time and money from your loved ones.
In 2025, avoiding probate when transferring real estate is not only possible-it's smart. With modern tools like Transfer on Death deeds, revocable living trusts, and Medicaid-compliant planning, you can pass your home to the next generation efficiently and privately.
Contact us by either using the online form or calling us directly at 414-253-8500 for legal assistance.
Why Avoiding Probate Matters
Probate is the legal process of validating a will and distributing a deceased person's assets. When real estate goes through probate, it can:
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Take 6-18 months or longer, depending on the court system
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Require appraisals, court filings, and public notices
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Cost thousands in legal fees and executor costs
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Be delayed by creditor claims, disputes, or multiple heirs
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Become public record, exposing your family's financials
Avoiding probate keeps the transfer of your home private, faster, and often far less expensive.
Option 1: Use a Transfer on Death (TOD) Deed
A Transfer on Death (TOD) deed allows you to name a beneficiary who will automatically receive your home upon your death-without court.
Advantages:
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Keeps you in full control of the home while alive
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Avoids probate entirely
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Simple and inexpensive to record
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Can be changed or revoked anytime
Cautions:
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Only works for death-not incapacity
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Can complicate things if you have multiple heirs or Medicaid concerns
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Must be properly recorded and compliant with state law
TOD deeds are best for simple estate plans and single-property owners. If your estate is more complex or you're concerned about long-term care, you may need a more robust solution.
Option 2: Transfer the Home Into a Revocable Living Trust
A revocable living trust holds title to your home while allowing you to remain in full control. When you pass away, your successor trustee can transfer or sell the property without probate.
Benefits:
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Avoids probate for your home and all other trust assets
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Keeps your estate private
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Allows for detailed distribution instructions (e.g., keep the home in the family, divide sale proceeds among heirs, etc.)
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Also protects against court intervention if you become incapacitated
Trust-based planning is ideal for families with multiple assets, blended families, or a desire for more control over what happens after death.
Option 3: Consider a Medicaid Asset Protection Trust
If you're concerned about long-term care costs or Medicaid estate recovery, simply avoiding probate may not be enough. A Medicaid Asset Protection Trust (MAPT) can help protect your home from being taken to repay care costs, while still allowing a smooth transfer to your heirs.
Advantages:
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Shields your home from Medicaid recovery, if done properly and early enough
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Keeps the house out of probate
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Allows you to live in the home for life
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Helps preserve equity and family wealth
Key Considerations:
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Must be established at least five years before applying for Medicaid
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Once transferred into the trust, you cannot revoke or take back the property
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Requires careful legal drafting and trustee selection
MAPTs are powerful for individuals or couples approaching retirement age, especially if they want to keep the family home in the next generation without risking it to nursing home costs.
Explore our Medicaid Asset Protection Trusts page to learn more about this strategy.
What to Avoid: Common Mistakes in Real Estate Transfers
Many well-meaning homeowners try to transfer property without guidance and end up creating tax, title, or legal headaches. Avoid:
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Gifting the home outright during life (may trigger gift taxes and eliminate step-up in basis)
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Adding adult children to the deed as joint owners (opens you up to their creditors, divorces, and taxes)
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Relying only on a will (guarantees probate)
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Failing to coordinate your real estate with your overall estate plan
Each property-and family-is different. That's why it's critical to work with an attorney who understands real estate law, estate planning, and long-term care considerations.
Contact a Real Estate and Estate Planning Attorney Today
If your goal is to protect your home, pass it to loved ones, and avoid unnecessary court battles, we can help you use the right tools-legally and strategically.
At Heritage Law Office, we work with individuals and families to create trust-based, deed-based, or Medicaid-protected plans tailored to your needs and values.
Call 414-253-8500 or contact us online to protect your home and your legacy-without probate.
Frequently Asked Questions (FAQs)
1. What is the best way to transfer my house without probate?
The answer depends on your goals. A Transfer on Death (TOD) deed is simple and avoids probate. A revocable living trust offers more control and works for multiple properties. If you're concerned about Medicaid or long-term care costs, a Medicaid Asset Protection Trust may be best. An estate planning attorney can help you decide what's right for your situation.
2. Does adding my child to my deed avoid probate?
Yes, but it comes with major risks. Doing so can expose your home to your child's creditors, divorce proceedings, or financial troubles. It also creates possible tax issues for your child when they inherit the home. It's generally better to use a trust or TOD deed instead.
3. Can I still live in my home if it's in a trust?
Absolutely. With a revocable living trust, you retain full control and use of the home during your lifetime. Even with a Medicaid Asset Protection Trust, you can keep living in the home-you just can't sell it and keep the money yourself. The trust structure simply determines what happens legally and financially when you pass away.
4. What is a Lady Bird Deed?
A Lady Bird Deed is an enhanced life estate deed that allows you to retain control over the property during your life while naming a beneficiary to receive it upon your death. It's similar to a TOD deed but only available in some states. It avoids probate and can help with Medicaid planning in certain cases.
5. Can real estate be transferred outside of probate if there's a mortgage?
Yes. A mortgage doesn't prevent you from placing your home in a revocable trust or recording a TOD deed. However, it's important to ensure your lender is notified and your estate plan accounts for loan obligations, especially if heirs may want to keep the home or refinance.