Newcastle, OK asked in Real Estate Law for Oklahoma

Q: My Wife and I are in our 70’s we owe 50.000 on a house worth 100.000 we want our son to have the house, What to do ?

We also have a Daughter, but want the son to have the house,

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1 Lawyer Answer
Matt Fleischer
Matt Fleischer
  • Oklahoma City, OK
  • Licensed in Oklahoma

A: You have numerous options:

1. You can transfer the house to your son and reserve a life estate for you and your wife. This strategy allows you to reserve the right to use and enjoy the property for the rest of your life and ensure your son receives it upon your deaths, without probate. However, as a life tenant, you have a responsibility to maintain the property and cannot sell or mortgage it without the remainderman’s (your son's) permission.

2. You can place the house in joint tenancy with your spouse and son. However, joint tenancy has its limitations—all tenants have equal control, the creditors of either tenant can reach the asset, etc.

3. Likely your best option is to execute a Transfer on Death (TOD) deed that identifies your son as the beneficiary. Your control over the property is not affected and your son has no interest in the real property until you and your wife die. The designation may be revoked or changed at any time and your son takes only the interest held on the date of your deaths, subject to all encumbrances, reservations, and exceptions.

A word of warning regarding the TOD deed: the transfer at death is not automatic. To obtain title to the property, your son must file an affidavit of record that affirms numerous facts and includes a copy of your death certificate within 9 months of your death. If your son fails to do so, the property reverts to your estate. If you execute a TOD deed, make sure your son knows about the 9 month window.

Whatever option you choose, you should definitely consult an OK attorney regarding the drafting of the deed. Depending on how title to the house is currently held between you and your wife, you may need more than one deed or you may need very specific language included in the deed.

P.S. You can also leave the house to your son in your will, but if the house passes via the will instead of via one of the deeds/conveyances mentioned above, then the house will have to be probated.

Jason Bolitho agrees with this answer

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