I continue to pay our home mortgage, which is in the name of the trust. Estate tax form 706 has been filed. Do I transfer the home to me? What is supposed to be filed in probate court?
I am sorry about your husband's death. If the house is in the name of your trust, then you do NOT need to go to probate court (that's one of the primary benefits of setting up a trust). If all of your assets were titled in the name of the trust, then the only thing that needs to be filed in probate court is your husband's Will.
If any assets weren't transferred to the name of the trust, you might need to file a petition in the probate court to have the court confirm that the assets belonged to the trust (this is sometimes called a "Heggstad Petition" based on the case that said you can do this instead of having to probate the assets).
Given that a 706 was filed, I am assuming that your trust was set up to take maximum advantage of the estate tax laws. In that case, I presume that the trust split into 2 or more subtrusts upon your husband's death. Your assets need to be allocated to those subtrusts. The 706 should provide information on what assets were allocated to which subtrust. Whoever prepared the 706 should be able to show you how to figure that out (I'd say that person should give you a clear list of what asset was allocated to which trust - at least you should ask for that!!!).
After you find out that information, you need to record an "Affidavit of Death of Trustee" in the county recorder's office. You will also need to sign and record a new deed transferring ownership of the property into whichever subtrust the property was allocated to on the 706 (it might have been split between 2 subtrusts).
You will also need to transfer ownership of the other assets (for example, if you and your husband owned stocks & bonds, you will need to allocate them to the correct subtrust(s), too).
This information is not intended to substitute for professional legal advice and does not create an attorney-client relationship. You should accept legal advice only from a licensed legal professional with whom you have an attorney-client relationship.
Do not dare attempt to go through probate without a lawyer. I am an attorney and would have no chance of doing it myself.
My standard disclaimer: I am not offering legal advice, assume I do
not know the law in your state or at all for that matter and that I am
just making suggestions for starting points for when you do speak with
an attorney. Do NOT rely on anything I write and contact a lawyer in
your area immediately after reading my posting.
