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

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. Best answer

    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?

    Please remember to mark what you believe to be the best answer to your question. This answer is provided by estate planning attorney Robert P. Bergman, with offices in San Jose, California. Mr. Bergman is a Certified Specialist in Estate Planning, Trust and Probate Law (State Bar of California Board of Legal Specialization), and has been practicing since 1980. This answer does not create an attorney-client relationship, and is only intended to provide general legal advice within the limits of the question asked. If you wish to create an attorney-client relationship for specific legal advice, it will be necessary to enter into an engagement for legal services. More general legal information about wills, living trusts, and estate planning can be found at Mr. Bergman's main website at www.lawbob.com, or his information website at www.lawbob.net. Mr. Bergman also offers free living trust seminars and wealth preservation seminars at his offices in San Jose. For those unable to attend a live seminar, an online living trust seminar may be viewed or downloaded at www.freelivingtrustseminar.com.


  2. 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 general information only. They are not legal advice. Answers must not be relied upon. Legal advice must be based on the interplay between specific exact facts and the law. This forum does not allow for the discussion of that interplay. My answer to any specific question would likely be different if that interplay were explored during an attorney-client relationship. I provide legal advice during the course of an attorney-client relationship only. The exchange of information through this forum does not establish such a relationship. That relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement signed by each of us. The communications on this website are not privileged or confidential and I assume no duty to anyone by my participation on Avvo or because I have answered or commented on a question. All legal proceedings involve deadlines and time limiting statutes. So that legal rights are not lost for failure to timely take appropriate action and because I do not provide legal advice in answer to any question, if you are an interested party you should promptly and personally consult with an attorney for legal advice. Also, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference


  3. 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 for specific help tailored to your needs. www.figgardenlaw.com

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