Is real property transferred from a person to a trust, where the grantor failed to prepare a quitclaim deed before dying? 7 Answers as of August 05, 2014

A sole surviving spouse signed a living trust in California that specifically transferred all real and personal property to a family trust that he created for the benefit of his children. The trust was properly signed and notarized prior to his death. However, he did not prepare a quitclaim deed that transferred his real property from himself to the trust prior to when he died. Was the property effectively transferred by the terms of the trust without a quitclaim deed? What are the ramifications of failing to prepare a quitclaim deed prior to his death, if any? Can the transfer of the house be accomplished by the successor trustee (his daughter)? If so, how does the successor trustee accomplish the transfer? Does the failure to sign a quitclaim deed require the real property to go through probate? Any advice on resolving this situation without probate is greatly appreciated.

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Law Offices of Charles R. Perry
Law Offices of Charles R. Perry | Charles R. Perry
Without a quitclaim deed, there is no way to avoid a court proceeding. The new trustee cannot simply sign a quitclaim deed and transfer the property to the trust. There may be a way that you can file with the court and have decided what is called a Heggstdad petition to transfer the property into the estate. If all the beneficiaries agree that the property should go into the trust and all rules are complied with, the court should approve the petition and allow the transfer without probate. This will likely require you to retain an attorney, however.
Answer Applies to: California
Replied: 8/5/2014
Law Offices of George H. Shers | George H. Shers
Title to the real property must be transferred to the Trust before the trustor dies, as once he dies the property goes into his estate. If the total gross value of the real property is under $100,000 [extremely doubtful] a small estate probate can be done. So you will probably have to go through normal probate and divide the property as his Will, if there is one, states or by the law of inheritance in the state where the property is located. Since no assets were transferred to the Trust, no functioning Trust exists.
Answer Applies to: California
Replied: 8/5/2014
Law Ofices of Edwin K. Niles | Edwin K. Niles
Daughter can file a Heggstad petition to have the court order that the real property be transferred per the trust. Any experienced rust lawyer should know how to do this.
Answer Applies to: California
Replied: 8/5/2014
James Law Group
James Law Group | Christine James
The successor trustee cannot now sign a deed transferring the property, but the successor trustee can have an attorney file a Heggstad petition that will ask the court, upon showing of evidence of the trustor's intent to have the real estate be an asset of the trust, to sign an order that will allow the successor trustee to distribute it through the trust. Speak with an attorney for help on this. It will be much quicker and easier and the trust will be responsible for the cost.
Answer Applies to: California
Replied: 8/4/2014
Law Office Of Victor Waid
Law Office Of Victor Waid | Victor Waid
Obtain the assistance of a probate/trust Administration attorney to assist you in the preparation of Heggsted petition to obtain a transfer of the property into the trust, as it appears the trustor intended this transaction to happen. A trust administration attorney can be a major benefit to you, to keep the trustee out of legal trouble in implementing the provision of the trust.
Answer Applies to: California
Replied: 8/4/2014
    Neal M. Rimer, Esquire
    Neal M. Rimer, Esquire | Neal M. Rimer
    The execution of a trust does not, in and of itself, transfer real property to the trustee of the trust. If the assignment within the trust is specific (APN, common address or legal description) as to a particular piece of real property, then an "850" petition in probate court would likely result in a court order to make the transfer. This is a much more simple procedure within the probate court to get a court order. Otherwise, you just have to open a probate and use the Will to obtain a court order to make the transfer of the real property from the decedent's name to the trustee of the trust. In the meantime, the successor trustee would be best served by retaining an attorney to assist with the administration of the estate. There are many pitfalls in this area and getting the right advice would save a lot of money later. The Trustee must give notice to the beneficiaries within 60 days from the date of death. A Balance Sheet must be started with the assets and liabilities. All the income and expenses must be recorded with detailed descriptions. The assets need to be rounded up so as to identify them all... investments need to be made to keep the assets productive and income producing. Liabilities must be identified and dealt with. A Federal Employer Identification Number (FEIN) must be obtained to handle the administration and until the distribution of the trust assets are completed. Tax planning for the fiscal year end must be analyzed and the accounting system started to account for everything.
    Answer Applies to: California
    Replied: 8/4/2014
    Law Office of Jeffrey T. Reed | Jeffrey T. Reed
    Unless the property is specifically transferred into the name of the trust it is not in the trust. There are procedures to handle this situation and you will probably need an attorney to help. Depending on the value of the property you may be able to use a small estate claim or you may need to file what is called a Heggstad Petition under Probate Code Section 850 with the probate court. Both of these can be done by the trustee.
    Answer Applies to: California
    Replied: 8/4/2014
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