Could you avoid probate by leaving a deed filled out and notarized but not filed until death?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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In some states it would work, in others it would not. To be sure that it would work for you, you would have to check out the laws of your state.

Beware though, with this kind of “dresser drawer deed,” there might be some negative tax consequences, such as owing capital gains tax on the amount the property has increased in value over the years. For example, say X bought her home for $100,000 in 1964 and dies in 2005, with a dresser drawer “gift” deed to you. If you then sold the property after X’s death in 2005 for $220,000, you would have to pay a capital gains tax on the $120,000 of “profit.”

On the other hand, if X owned the property at her death, and it went through probate, or X put the property in a living trust to be distributed to you by her successor trustee, the tax basis would be “stepped up” as of the date of death to the full $220,000 value. If you then sold the property at that price, there would be no capital gains tax to pay, because there would be no “profit.”

The capital gains tax the beneficiary has to pay could be 10–50 times what it might cost to go through probate or to prepare a living trust. Given these tax concerns, this kind of deed is probably not a very good option in most cases. Consult a qualified, experienced estate planning attorney in your state if you have questions about the best way to transfer real property in your situation.

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