For many families, the family home is both the most valuable asset and the most emotionally significant. But without a clear legal plan, that home can become tied up in costly and time-consuming probate, create conflicts among heirs, or even be subject to Medicaid estate recovery.
In 2025, more families than ever are looking for smart ways to transfer real estate without triggering taxes, legal disputes, or unintended consequences. Whether you're an aging homeowner or an adult child helping your parents plan, the key is using the right tools-with guidance from an experienced attorney.
Contact us by either using the online form or calling us directly at 414-253-8500 for legal assistance.
Why You Want to Avoid Probate for Real Estate
Probate is the legal process of settling an estate after someone dies. When a home must go through probate:
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The process can take months or longer
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Court and attorney fees eat into your estate
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Property may be frozen and inaccessible during proceedings
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Disputes between heirs can delay or derail transfer
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Your will becomes public record
In contrast, avoiding probate means your loved ones can transfer or sell the home quickly, privately, and with minimal expense.
What Doesn't Work (And Can Backfire)
Many people try "DIY" strategies to avoid probate-often with unintended consequences:
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Adding a child to the deed creates immediate joint ownership but may:
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Trigger gift taxes
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Expose the property to your child's creditors or divorce
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Disqualify you for Medicaid if done within the look-back period
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Leaving a will alone still requires probate-even if the will says who gets the house
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Verbal promises or handwritten notes have no legal authority
Only legally recognized tools-executed correctly-can transfer real estate outside probate while protecting your rights and eligibility.
Smart Legal Tools to Transfer Real Estate Without Probate
1. Transfer on Death (TOD) Deeds
A Transfer on Death deed, available in many states, allows you to name a beneficiary who will automatically inherit the home when you die-without probate.
Advantages:
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You retain full ownership and control during your life
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Easily revoked or changed
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Avoids probate entirely
Limitations:
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May not protect against Medicaid estate recovery
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Can complicate title if the beneficiary dies before you or refuses the property
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Only applies to real estate-does not handle other assets
TOD deeds are simple but must be filed properly with the county recorder. Errors or outdated information can void the protection.
2. Lady Bird Deeds (Enhanced Life Estate Deeds)
Available in select states, Lady Bird deeds work like TOD deeds but offer enhanced protections:
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You retain the right to sell, mortgage, or change the beneficiary at any time
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Property passes to your named beneficiary without probate
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May offer better Medicaid protection than a standard TOD deed
These deeds must be carefully drafted to avoid triggering Medicaid ineligibility or gifting issues. They're not recognized in all states, so legal advice is critical.
3. Revocable Living Trusts
A revocable living trust is one of the most comprehensive and flexible tools for avoiding probate-not just for real estate, but for all types of assets.
How it works:
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You transfer your home into the trust during your lifetime.
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You serve as the trustee (and beneficiary) while alive, maintaining full control.
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Upon death, your successor trustee transfers the property according to your instructions-without court involvement.
Benefits of using a revocable trust:
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Avoids probate for all assets titled in the trust
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Keeps property transfers private
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Allows for detailed control over how and when assets are distributed
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Works well for blended families and complex estates
To be effective, the trust must be properly funded-meaning the deed to your home must be retitled in the name of the trust. Many people create trusts but forget this crucial step, leaving the home vulnerable to probate.
4. Life Estate Deeds (Standard)
A life estate deed allows you to retain ownership of your home during your lifetime while naming someone else (called a remainderman) to inherit it automatically when you die.
Pros:
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Avoids probate
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Simple and inexpensive to create
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Property passes directly to the remainderman
Cons:
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You give up the right to sell or mortgage the property without the remainderman's consent
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May impact Medicaid eligibility
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Can create capital gains tax complications for heirs
This approach is far less flexible than a revocable trust or Lady Bird deed but may suit simpler family situations.
Medicaid Considerations: Avoiding Probate vs. Avoiding Recovery
Many families worry not only about avoiding probate, but also about protecting the home from Medicaid estate recovery after the owner receives long-term care benefits. The rules vary by state, but generally:
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TOD and standard life estate deeds may not prevent Medicaid recovery if the property is still considered part of the estate at death.
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Lady Bird deeds and irrevocable Medicaid Asset Protection Trusts (MAPTs) offer stronger protection when done properly and ahead of time.
Learn more about protecting your home from Medicaid recovery on our page for Medicaid Asset Protection Trusts.
Key Steps to Protect Your Home
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Assess your goals: Are you trying to avoid probate, preserve Medicaid eligibility, reduce taxes, or all three?
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Review your current deed and estate plan: Does the title match your intent? Are you relying on outdated strategies?
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Work with an estate planning attorney: Deed errors, tax consequences, and Medicaid penalties can all result from poor planning.
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Update your documents regularly: Laws change, beneficiaries pass away, and your wishes may evolve over time.
Contact a Real Estate and Probate Attorney to Secure Your Legacy
If you or a loved one owns a home and wants to avoid the delays and costs of probate, now is the time to act. At Heritage Law Office, we help families protect their homes, navigate Medicaid planning, and transfer real estate seamlessly-without court battles or tax mistakes.
Call us at 414-253-8500 or contact us online to schedule a consultation and secure your home for the next generation.
For more ways to protect your estate, visit our guide on how to avoid probate.
Frequently Asked Questions (FAQs)
1. What is the best way to transfer my home to my children without going through probate?
The best method depends on your goals. If you want simplicity and maintain full control during life, a Transfer on Death (TOD) deed is often a good choice. For more complex needs-like protecting the home from Medicaid recovery or ensuring equitable inheritance-a revocable living trust or Lady Bird deed may be better. An attorney can help you choose the right strategy based on your situation and state laws.
2. Is adding my child to the deed a good idea to avoid probate?
No, this is generally not recommended. Adding a child to your deed as a joint owner may expose the home to their creditors, divorce settlements, or financial liabilities. It may also trigger gift tax consequences and hurt Medicaid eligibility. Safer alternatives like TOD deeds or trusts are available and legally more protective.
3. Will a Transfer on Death deed protect my home from Medicaid recovery?
Not necessarily. In many states, the home can still be subject to Medicaid estate recovery if the beneficiary designation does not remove it from your estate. If Medicaid protection is a goal, tools like a Lady Bird deed or Medicaid Asset Protection Trust (MAPT) offer stronger safeguards when properly timed and executed.
4. What happens if I die without updating the deed or title of my home?
If you don't update the deed or use a valid probate-avoidance method, your home will likely go through probate court, even if you have a will. This process can delay transfer, increase costs, and invite disputes-especially if multiple heirs are involved or the will is contested.
5. Can I still refinance or sell my home if it's in a trust?
Yes-if it's a revocable living trust and you are the trustee, you retain full control to sell, refinance, or transfer the property. However, your lender may need to review the trust documents. Always inform your attorney or lender in advance to ensure smooth processing and avoid title issues.