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Can I avoid probate for a property not in the trust after my husband's death?

Can I avoid probate for a property not in the trust after my husband's death?

Full question:

My husband and I have a living trust. He took out one of the properties that he was planning to get a loan on. He passed away before he got the loan and thus,the property was not in the trust. Can I avoid Probate? Is there a form that I need to file? The will & trust stated all assets went to me.

Category: Wills and Estates
Subcategory: Probate
Date: 04/07/2025
State: California

Answer:

The ability to avoid probate depends on how the property title was held. If the property was transferred out of the trust and conveyed to both you and your husband, it may be considered community property. If it was conveyed with a right of survivorship, you would automatically become the sole owner upon your husband's death, and no probate would be necessary.

To clarify your situation, review the deed that transferred the property. If it was only in your husband's name, you may need to go through probate to obtain title. Consulting a local attorney experienced in real estate and probate law is also advisable.

This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.

FAQs

What are the disadvantages of putting your house in a trust?

One disadvantage of putting your house in a trust is the potential loss of control. Once the property is in the trust, you may need to follow the terms of the trust regarding its management and distribution. Additionally, there could be upfront costs for setting up the trust, including legal fees. If you need to sell the property, it may involve extra steps to transfer it out of the trust. Lastly, not all types of trusts provide the same level of protection from creditors or taxes.

Can I put a mortgaged property into a trust?

Yes, you can put a mortgaged property into a trust. However, it’s important to check the mortgage terms. Some lenders may have a due-on-sale clause, which means they could require full payment of the mortgage if the property is transferred to a trust. It's advisable to consult with your lender and a legal professional to understand the implications before making the transfer.

What happens when you revoke a living trust?

When you revoke a living trust, the assets held in the trust revert to your name. This means you regain full control over the assets, and the trust no longer governs their distribution. It is essential to update any titles or deeds to reflect this change. Additionally, revoking a trust may have tax implications or affect estate planning, so consulting with an attorney is recommended.

Can an heir take over a mortgage?

Yes, an heir can take over a mortgage, but it depends on the mortgage terms. If the mortgage has a due-on-sale clause, the lender may require the loan to be paid in full upon the original borrower's death. If the mortgage allows for assumption, the heir can continue making payments. It’s best to contact the lender to understand the options available.

Can a mortgaged property be placed in a trust?

Yes, a mortgaged property can be placed in a trust. However, you should verify your mortgage agreement for any clauses that may trigger a due-on-sale provision. This could mean that the lender may demand full repayment if the property is transferred to a trust. Consulting with both your lender and a legal expert can help clarify any potential issues.

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