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If a house is refinanced and taken out of a living trust and a certification of trust was signed, is the original trust valid?

Redwood City, CA |

My mom died Sept. 18. She filed a living trust in 1993 naming my brother the beneficiary of her house which she owned as her sole and separate property. In 2002 she refinanced the property and title was never put back in the trust name, there was a certification of trust form notarized and this was used to put the property back in her name. She had an existing $200k equity line of credit in which she owes $140k. The house is probably worth $500k. My brother has hired an attorney to get the property in his name. My mother was married for 30 years and I am not sure if my stepfather will be claiming anything. Do I have a chance if I hire an attorney to object my brother's petition and ask the court to split the equity of the house in 3. My brother, my stepfather and myself.

Attorney Answers 3

Posted

You need to speak to a probate lawyer about this situation. I also assume that your mother was living in California at the time she passed away.

If the house was outside the trust at the time of your mother's passing, then rights to that house are determined by your mother's will. If she had no will, then rights to that house are determined by the laws of intestacy. If the laws of intestacy apply, then you would have a right to an interest in the house, though it is not clear how much of an interest you would have.

The probate lawyer will need to review the will and trust documents, in order to properly advise you. I have done this kind of work before, and know that it requires an attorney's assistance. It is not something you should try to do on your own. I also would be happy to speak with you about this matter, if you desire.

Best of luck to you.

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1 comment

James P. Frederick

James P. Frederick

Posted

Of course, if the Will is a pour-over Will, the property might find its way back into the trust anyway. Tricky situation.

Posted

I agree with Mr. Perry's answer and that you should consult local probate counsel.

Your brother's attorney is probably going to file a Heggstad petition in probate court to have the house governed by the terms of the trust since you advise your brother is the sole beneficiary of "her house."

It is not a done deal as the court will have to rule on the petition and there many facts which will bear on that decision. So, the early retention of a probate attorney to represent your interests is essential.

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Posted

My colleagues have provided you with sound advice. You need to consult with a local probate attorney right away to review all of your information so that you can make informed decisions. The failure to put the house back into the trust might be overcome through a Heggstad petition. This is not going to be a do-it-yourself task.

** LEGAL DISCLAIMER ** My response above is not legal advice and it does not establish an attoreny-client relationship. When responding to questions posted on Avvo, I provide a general purpose response based on California law as I am licensed in California. In reviewing my response, you are specifically advised that your use of, or reliance upon any response I provide is not advisable. I do not have all relevant background details or facts related to your issue / matter, thus I am not in a position to give you legal advice. Further, your review, use of, or reliance upon my response does not establish an attorney-client relationship between us nor does it qualify as a legal consultation for any purpose. For specific advice regarding your particular circumstances, you should consult and retain local counsel. Law Offices of Eric J. Gold www.EGoldLaw.com Telephone: 818-279-2737 Email: service@egoldlaw.con

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