If the mortgage on a house has been paid with a Trust checking account, can the home be considered Trust property?

Asked almost 2 years ago - San Francisco, CA

The home was never formally titled as being a Trust asset, although the individual names of the Trustees are on the title of the home. Thank you.

Attorney answers (4)

  1. Robert Paul Bergman

    Contributor Level 13


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    Answered . Whether or not real property is considered property of a trust depends on a lot of factors. The most important factor is if the property is actually titled in the name of the trustees of the trust. If that is not the case, then you have to look and see if there is any written evidence of the intention of the owners of the real property that it be owned by the trust. These would include the following:

    1. A schedule of trust assets that specifically identifies the real property,;
    2. Some other writing signed by the owners that indicates the intention that the property is in the trust;
    3. The real property was already in the trust, but was removed for the sole purpose of obtaining a loan or refinancing, and the owners neglected to put the real property back into trust ownership. This actually happens very frequently, and is the cause of much anguish when the trustor(s) of the trust die and it is discovered that the real property is no longer in the trust ownership.

    From your question, it appears that you want the real property to be trust property, but that is not the case at this time. Is there something stopping the transfer of the real property into the trust ownership?

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  2. Michael Raymond Daymude

    Contributor Level 20


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    Answered . You would need more evidence of the testators' intent than payment from a trust checking account, IMO. You should consult trust counsel if you are a trustee, beneficiary, or other interested party. Good luck.

    I am licensed in California only and my answers on Avvo assume California law. Answers provided by me are for... more
  3. Bruce Givner

    Contributor Level 19


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    Answered . The other two gentleman have answered well.

  4. Sean Patrick Lewis

    Contributor Level 17


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    Answered . It is never a good idea to rely on peripheral circumstances to establish such things as whether a home is in a trust or not. It is best to actually title the home properly and list the home on the schedule of assets, to make it abundantly clear.

    Good luck.

    The above is not intended to be legal advice, but may be used for general information. Please contact an attorney... more

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