Legalities

Legalities, a weekly column that appears in the Help section of the Southern Illinoisan, is a free service of the Self Help Legal Center. You can visit the Southern Illinoisan website at: http://www.southernillinoisan.com

Q: I read in a legal advice newspaper column that I should put my child=s name on my property so that it will be easier for him to take ownership when I die. My neighbor, however, said that she read in an article in a senior citizen=s magazine that I shouldn=t do that and that I should transfer the house through my will. I am concerned because I already put my house in my son's name. Who is right? Why am I getting different advice? Isn't one of these publications wrong?

A: Not necessarily. Either publication could be right or wrong, depending on the individual circumstances of the reader. This is why, of course, you shouldn't make major life decisions based upon legal advice or information that you find in a newspaper column (including this one), a magazine article, a television show, or a Web site on the Internet.

Most of you who read this column more than once have probably seen a disclaimer at the end of the column. The disclaimer mentions that the column is for general information only and is not giving legal advice. You may think that this disclaimer is put in just to prevent a lawsuit. It isn't. The point of the disclaimer is to warn the reader that I cannot possibly anticipate all the possible circumstances that every reader faces and accordingly, the information that is given in the column (while as accurate as it can be) may not apply to everyone's situation.

Let=s take our reader=s property transfer question as an example. In some circumstances, it might make sense for the reader to put her child's name on her home instead of transferring it to him through her will. He may not have to go through probate, he may avoid inheritance tax, and he may save himself a lot of time and money.

On the other hand, there may be circumstances when it may make more sense for the reader to do the transfer in a will. When our reader puts her property in her child=s name, he owns it immediately, not when she dies. As such, depending on the value of the property and the type of deed, the reader and her child may encounter unintended and immediate tax (gift or property) or other financial consequences.

For example, let=s say the reader=s child was planning on applying for financial aid to go to college. If she put his name on the deed to her home, a future lender or school may consider this asset as belonging to him and as such, may deny him the financial aid he needs. Similarly, if her child runs up a debt at the local lumber yard, the lumbar yard could put a lien on her home because her child would appear as a joint owner.

Doing a property transfer instead of doing a will also gives our reader less flexibility to change her mind. If she wants to change her will and give her house to her daughter instead of her son, all she has to do is change her will. If she has already put her son=s name on the deed to her home, however, she would have to get his permission to do the change -- which he may not want to do.

The lesson of this week=s column is also our disclaimer -- not all legal advice or information applies to all people in all situations. If you are concerned whether the information you read in this (or any other) column applies to you, talk to an attorney, tell him (or her) your situation, and see if the advice (or information) changes.