My Mother has a living will/trust. She never transferred the deed to her home into the trust. Her home is paid for.

Asked over 3 years ago - Vista, CA

What are the repercussions upon her passing, regarding the distribution of the home?

Attorney answers (7)

  1. Adam Christopher Aparicio

    Contributor Level 9

    Answered . Based on your question, it is unclear whether your mother has already passed or if you're asking what would happen if she did pass.

    I will answer in in two parts:

    1. If she has not passed:

    I would immediately transfer the property into the trust using a deed transfer, and get it recorded as soon as possible.

    2. If she has passed, this could be problematic. By that I mean, depending on the deed and how the property is currently held, the trust would be deemed unfunded for purposes of the house in question (other property, i.e., stocks, bonds, bank accounts, could be listed properly in the trust), which would mean a formal probate proceeding would likely be necessary to distribute the house.

    Unfortunately, probate can be long and drawn out, not to mention expensive.

    Please contact my office if you'd like a free consultation.

    Best,

    Adam C. Aparicio

  2. Gerard William O'Brien

    Pro

    Contributor Level 16

    Answered . If your mother's trust has the trust listed on schedule A, a judge may be willing to allow the trust to be put into the trust through a hearing called a Heggsted hearing. However, not all judges automatically grant these motions. So you should look to see if there is a pour-over will with your mothers estate documents. If there is and if the will includes Independent Administration of Estates Act language, it may be easier and less expensive to go through a probate.

    I suugest that you take your mother's documents to an attorney and ask him or her to review the documents so that they can give more definitive advice on how to proceed.

  3. Christopher B. Johnson

    Pro

    Contributor Level 12

    Answered . Along with the prior answers, get the house (by deed) into the trust if she's still alive--you can often use a power of attorney to do so if she is unable to do so herself. If not, probate may not be required if there's written evidence she intended to transfer the home into her trust, which is usually the Schedule of Trust Assets, or Schedule A, at the back of the trust--if this is the case, you do need to file a petition with the probate court to get an order transferring it into the trust, but it's simpler and cheaper than a full probate.

    If none of the above applies, probate is required. Trusts are usually accompanied by a "pour-over will", which says the home should go to the trust. If there's no pour-over will, then her last will determines distribution, and if there's no prior will, intestate succession rules apply.

  4. Daniel Kenneth Printz

    Contributor Level 14

    Answered . The repurcussion is that the house will need to go through probate to get into the trust, and then be distributed out of the trust, unless you can convince a judge with a Heggsted petition that it should be transferred into trust without probate.

    If your mother still has capacity, have her deed the house into trust now. If she does not have capacity but has a durable power of attorney, her Agent under that DPA can execute a deed to transfer it to trust. If she has no capacity and no DPA, then file a Petition for Conservatorship to obtain the power to transfer the property into trust.

    Contact an experienced estate planning attorney in your area for assistance; an error here can cost you a lot of money.

    Good luck.

  5. Douglas Charles Michie

    Pro

    Contributor Level 13

    Answered . The home must be put in the trust, or it will have to go through probate.


    www.michielawfirm.com

    I guess I wouldn’t feel lawyerly unless I wrote a disclaimer to this answer – after all, that’s what we lawyers are trained to do. So here it is. Disclaimer: Trying to provide a complete answer to a brief question without meeting the questioner and without getting all the facts is much like internet dating. Despite what you have been told by the person you’ve met online (and don’t they always put everything in the best light for themselves), once you meet them face to face you realize how much has been left out. People tend to bend the facts and there is always the other side to the story. So, this answer is about as valuable as the price that was paid for it. It should not be considered legal advice. It is meant as a general overview of how the law could apply to a very broad set of facts that may not have any applicability to the actual circumstances of the person making the question. It is hoped to provide some understanding of the broad field of law that could come into play. No attorney-client relationship has been formed with the questioner and no attorney client relationship was ever anticipated by my response to this question. I would also like to remind you that I am only licensed in the State of California, and the answer provided is based upon my knowledge of California law.

  6. Joseph Duc Dang

    Contributor Level 7

    Answered . Has she passed? If not, deed asap (keep an eye on capacity if she's gravely ill). It's easy and fast.

    Best: House transferred into the trust.
    Not as good. Heggstad Petition.
    Worse. Going through probate.

    Disclaimer. I am not your attorney. The End.

  7. Steven J. Fromm

    Contributor Level 20

    Answered . Assuming she is now deceased and the house was in her name, it is controlled by her will and the probate process. Also, if the will has a "pourover" provision to the trust and it did not specifically name a beneficiary of the house, then the house would eventually be controlled and disposed of by the terms of the trust. Retain a good estate planning attorney to discuss the details of the documents and to assist you in the estate administration.

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