Legal Question in Wills and Trusts in Nevada

My husband signed a personal guaranty on a real estate deal he did with some partners. All of his assets at that time and now were in our trust. He only signed his name and not the trust and I did not sign anything. All of our liquid assets are in a partnership within the trust. The property is about to be foreclosed on. Do I have any personal liability for this debt or all things within the trust protected?


Asked on 5/07/10, 5:33 pm

1 Answer from Attorneys

Rick Williams Law Offices of Frederick D. (Rick) Williams, Chtd.

Answering this question would require some more detail. If your trust is a revocable living trust (an estate plan) it will provide little to no protection from creditors. The purpose of such a trust is to avoid probate, not to protect assets and if it is, indeed, revocable, then a court can force you to revoke it to satisfy the demands of legitimate creditors. In other words, the law will view the assets of the trust as the equivalent of assets in your personal names, since you retain - as the trustees - the legal right to bust the trust and reclaim all those assets as your own. As for the partnership, was your husband a general partner or limited partner? That can make a big difference in whether he is exposed to such liability.

In order for the mortgage holders on the foreclosed properties to pursue your assets, they must file a separate legal action for a deficiency judgment. Once they have such a judgment in hand, though, they can go after any assets or income they find, and they WILL find them if they are in the name of your trust or your personal names.

Have you considered attempting to "short sell" the properties to avoid foreclosure? A competent Realtor can advise you on the practicality of this option, and it is sometimes possible to negotiate away a deficiency judgment on terms acceptable to the lender. Recognize that there may be some rather significant tax ramifications of either foreclosure or short sale of the properties, so you should seek good counsel on that topic, as well.

The answer is not so simple as just to say "I have no assets, because they are all held in a partnership or trust." There are many questions raised in a scenario like this, and you need legal counsel to help you wade through the muck.

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Answered on 5/13/10, 12:23 pm


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