Legal Question in Wills and Trusts in California

My wife and her sisters are co-trustees on their Mother's trust in Calif. The Mother has passed away. Her house was already on the market when she died and she would have had large capitol gains. The house was included in the trust. Do they have to change the names on the deed to now receive the monies as inheritance. The real estate agent says no, the title co. says no and H & R Block says no. Do you agree?

Asked on 7/22/13, 9:09 am

3 Answers from Attorneys

Anthony Roach Law Office of Anthony A. Roach

If the house is held in trust, then your wife is the surviving trustee of an irrevocable trust, and needs to comply with the terms of the trust. There are other things that she needs to do as well, such as dealing with tax issues and notice to the beneficiaries. I strongly advise you to get legal advice from a competent probate and trust attorney and not advice from a real estate agent or someone working at a title company.

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Answered on 7/22/13, 9:17 am

William Christian Rodi Pollock

It largely depends on the form of title. Anyone advising you will need to see the title documents. If title is in the name of the decedent as trustee of the trust, it may be necessary to file an affidavit of sucession of trustee to have the sale deed signed by the new trustees. This is a normal process and is often done in such circumstances. Usually the sale of the residence after death will have a basis adjustment to fair market value at death. This would reduce your taxable gain. You should engage an effective tax and estate advisor to help.

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Answered on 7/22/13, 9:52 am
Timothy McCormick Libris Solutions - Dispute Resolution Services

Mr. Christian gives a very good answer. If the property really is properly in the trust, title will be held as "Mothers Name" trustee of the "Name of Trust." The successor trustees will simply need to sign an affidavit of successor trustees to be recorded with the deed when the sale closes. He is also right, however, that there are lots of other issues and a few hours of attorney time, which can be paid for out of the trust, will be money well spent making sure everything is done right.

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Answered on 7/22/13, 10:36 am

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