My dad and mom have a irrevocable living trust with all of their assets in it. My dad mentioned that an atty in Ohio told him it would be better to keep their home outside the trust vs putting it into the trust. Can you think of a good reason for that? The house is listed in his will and would be distributed 1/3 each to the kids but i want to avoid probate and it seems as if it's left out of the trust that it would be required to go through the probate process. Any insight would be helpful. Thanks!
1 Answer from Attorneys
Is the house in Florida? If so, and it is titled as "husband and wife", it would have an automatic right of survivorship, meaning that if if your father died first then your mother would get the house without the need for probate (and if your mom died first, then your dad would get the house). Inspection of the title would need to be done to verify that this is the case. Additionally, if the house is homesteaded, by putting it in the trust (if not done properly) could risk losing the homestead status. I'm not sure about Ohio law (in the event that the house is in Ohio), but I believe Ohio is a community property state and there may be reasons why one would not want to put the house in the trust. Also, are you sure the living trust is irrevocable, and not revocable? Lastly, even with a trust, it is important to have a will (commonly referred as a "pour-over will") to account for property not in the trust as people often purchase additional assets and don't have a chance to transfer the assets into the trust.
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