Dear Liza: We are a married couple in our 40s with 2 kids with a living trust. Our primary residence is a part of the trust. We refinanced our primary residence a couple of months ago. We are not sure whether our house was pulled out of the trust during the refinance. Is there a way to find out whether the house is still part of the trust or not? If the house is out of the trust how do we get the house back into the trust? Often, when people refinance a house that is held in their living trust, their lender requires them to take the house out of the trust, get the new loan, then transfer the house back into the trust. I’ve been told by loan officers that this is because they want to check your individual credit ratings.
This is not always required, it depends on the lender. Sometimes you can get a new loan without going through the out of the trust/back into the trust shuffle. But if it is required, the loan officer will often create and record the deed transferring the house out of the trust so that you can qualify for the new loan (and they can get paid). If they transfer it out, they should transfer it back in. But often, that last step, transferring the house back into the trust, doesn’t happen. This is by far the most common reason that I find that clients end up with houses not in the trust.
To find out if your house is in your trust, you will need to get a copy of the last recorded deed. You can get that at your county’s recorder office. Many counties will let you order this online. Here is a handy website that lists all of the County recorder offices in California. If you go to Legal Consumer.com, you can find your local country registrar in any state, just by typing in your zipcode.
If our house is not held by your trust, you’ll need to record a deed transferring it back in. A lawyer can do this, but so can a title officer. You might consider going back to the title company where you signed the loan papers and ask them to record a deed transferring your property back in.
Dear Liza: My 90 yr. old mother recently died and I inherited her home, her only significant asset. I am preparing the Affidavit-Death of Trustee. Does this put the title to the house in my name or do I also need a Quitclaim deed? Do I need to create a new trust of my own or can it be left in the current one as I am a co-trustee? Sorry to hear about your Mom. You are now engaging in what’s called “Trust Administration.” The Affidavit Death of Trustee says that you are now the successor Trustee of your mother’s trust. (That means you have the legal authority to act under the trust with respect to the real property.) The next step for you is to then record a Trustee’s Deed transferring the property from that trust to yourself as an individual. (That gets the house to you outright and free of her trust.) If you want to set up a living trust, do that. Then you’ll transfer the house from your own name to yourself, as Trustee of the new trust by recording a Trust Transfer Deed. You can’t just leave the house in your mother’s trust, because now that she’s died, that trust is irrevocable and can’t be amended or changed. Also, as Trustee, you’re just the manager of the assets, not the owner. You can use Nolo’s resources to create your own trust or work with an estate planner, that’s up to you.