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In California, do I have to probate property transferred out of trust by deceased husband?

In California, do I have to probate property transferred out of trust by deceased husband?

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 answer will depend on how title to the property was held. If when the property was transferred out of the trust it was conveyed to you and your husband, it may fall as community property. Also, if the property was conveyed with a right of survivorship, an aspect of the law adopted in California nearly 10 years ago, the surviving spouse would become the sole owner of the property upon the death of the spouse. No probate action would be necessary.

It would be recommended that you closely review the deed that conveyed the property out of the trust. If it conveyed the property only to your husband, you may have to seek probate court assistance to obtain title.

You may also wish to consult with a local attorney experienced in real estate and probate work.

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.