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When moving property to a trust, does a deed have to be drawn transferring the property to the trust .

Westport, MA |

When moving property to a trust, does a deed have to be drawn tranferring the property to the trust before it can be sold to a 3rd party?

Attorney Answers 4


  1. Best answer

    While the trust may be entitled to ownership of the real estate by will or contract, it is not the legal owner of the property until such property is conveyed by deed. Whether the property can be sold absent this hurdle really depends on the prior owner and the agreement of the trustee, subject to the limitations of a trust.

    For example, if the residuary clause of a "pour over" will creates or distributes property to the trust, without specification, the Executor usually has the ability to sell the real estate and put the proceeds in trust with court approval that is generally granted. Even if the will specified the contribution of the parcel of property, if the trust is not established to hold the property for family and does not mandate that it be held as an investment, most trusts would allow the trustee to agree to accept proceeds of sale in lieu of the property. Depending on the terms of the trust, beneficiary agreement might be required. The same is true if someone has contracted to provide the property to the trust. Absent any of these obligations, it is exclusively withing the right of the original owner whether to sell it him/herself or to make the trust do it.

    Attorney Rosenberg is admitted to practice in Connecticut and Massachusetts, and currently practices in South-Central Connecticut with an emphasis on estate planning, elder law, probate, and tax matters. He may be contacted confidentially by email at Scott@ScottRosenbergLaw.com or by phone at (203) 871-3830. All correspondence through this website appears publicly, is not confidential, and does not create an attorney-client relationship between you and Atty. Rosenberg. Discretion should always be employed when posting personal information online. ~~~~~~~~~~~~~ All online content provided by Atty. Rosenberg on this and other websites is provided for general informational purposes only, and does not constitute legal advice. All content is general in nature. Attorneys are unable to ask the questions necessary to fully understand the legal issues faced by any particular poster. Postings and responses to questions only provide general insights on the topic discussed. They are not tailored to any reader’s specific situation, will not be accurate in all states, and are never updated or maintained to reflect changes in the law. No person should take action based on the information provided by anyone on Avvo.com or any other law-themed website without first consulting a local attorney with significant experience in your area of concern. Persuant to Circular 230, no online content may be used by any person to avoid taxes or penalties under the Internal Revenue Code.


  2. If the deed is to be part of the trust in needs to be titled as such with the recorder of deeds office. Otherwise the current owner is the grantor on the deed that effectuates the sale.

    It is hard to say based on your facts whether the property must be placed into the trust first before the sale. If there is a will with a pourover provision to the trust, a review of the will and trust would need to take place by estate counsel to get a definitive answer. It may be that the property could be sold by the estate with the proceeds going into the trust, but without a read of the documents no one can proviede you a definitive answer.

    Hope this helps.

    Please remember to designate a best answer to your question.

    Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is sjfpc@comcast.net , his website for more tax, estate and business articles is www.sjfpc.com. and his blog is

    LEGAL DISCLAIMER Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is sjfpc@comcast.net , his website is www.sjfpc.com. and his blog is <http://frommtaxes.wordpress.com/> Mr. Fromm is ethically required to state that the response herein is not legal advice and does not create an attorney/ client relationship. Also, there are no recognized legal specialties under Pennsylvania law. Any references to a trust, estate or tax lawyer refer only to the fact that Mr. Fromm limits his practice to these areas of the law. These responses are only in the form of legal education and are intended to only provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply or make such reply unsuitable. Mr. Fromm strongly advises the questioner to confer with an attorney in their state in order to ensure proper advice is received. By using this site you understand and agree that there is no attorney client relationship or confidentiality between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction, who is familiar with your specific facts and all of the circumstances and with whom you have an attorney client relationship. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question or omitted from the question. Circular 230 Disclaimer - Any information in this comment may not be used to eliminate or reduce penalties by the IRS or any other governmental agency.


  3. As a matter of Massachusetts law, you cannot sell what you do not own. If you want a trust to own a piece of real estate, you must transfer the property by deed of the XYZ trust and record the deed and a trustee's certificate documenting that the trust exists, who the trustee is, and that the trustee has various rights concerning the real estate. (Note -- we don't need to record the trust any more.) If the trustee does not have the right granted by the Declaration of Trust, then he can't sell the property.

    E. Alexandra "Sasha" Golden is a Massachusetts lawyer. All answers are based on Massachusetts law. All answers are for educational purposes and no attorney-client relationship is formed by providing an answer to a question.


  4. Yes.

    Trustees hold legal title to the property of the trust for the benefit of the trust beneficiaries. This means that the trustees might not personally benefit from the trust but any buyer, insurer or financial institution dealing with the trust concerning the trust assets must deal (have signatures from) the trustee(s). Generally a deed transferring property to a trust names the serving trustees as owners in their capacity as trustee. "I transfer to George Smith, trustee of the Smith FamilyTrust, dated xxxx". The deed is recorded in the appropriate registry so that there is no confusion as to title. In Massachusetts, a trustee must also file a Trustee's Certification that the trust document grants the trustee authority to hold and sell real property, or the trust itself must be entered into the real estate record.

    When it comes time to sell, the trustee(s) sign the deed on behalf of the trust, again in their capacity as trustee; "George Smith, trustee of the Smith Family Trust, dated xxxx, for consideration of Xxxx transfers to Jane Jones..." or similar language. The point here is that title must first reside in the trust, through it's trustees, then the trust, again through its trustees, can pass title to a third party.

    If you are a trustee, or are buying property from trust, you should discuss obtaining title insurance with your real estate attorney.

    Hope this helps.

    Legal Disclaimer: The comment provided above is intended as general information and is NOT legal advice. You should consult an attorney for advice regarding your individual situation. If your question concerns Estate Planning, Business Planning, Asset Protection, Elder Law, Long Term Care Planning, or matters governed by the laws of Massachusetts or Connecticut, you may contact me for a consultation at kquinn@legacycounsellors.com or 413-527-0517.

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