N/A deceased grandmother

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evapilotaz

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My grand mother just passed. No surviving spouse. My mom is the trustee and I'm 50% named beneficiary of the estate. The only thing of real of value is the house. We are preparing to sell the house. Do we need to transfer the deed or title to my mothers name before sale of the house? I would like to have deed and title in both our names. Do we have to go to probate court before selling the house. Trying not to get an attorney involved. I know internet free advice is not the best approach. By the way I'm in AZ.

Thank you
 
I don't know about the legal stuff.
But I'm sorry about your grandmother.
 
Did she have a will or a trust? (Disclaimer; I am not a lawyer) If it was a will, you are probably dealing with probate (it is one of the main reasons people have trusts). You said your mom was a "trustee" so it sounds like a trust, otherwise she would be an executor. I think you should probably consult an attorney.
 
I know there are many types of trusts, but in my recent experience my grandmother passed. I was the trustee. As a trustee I sold the house and then distributed the funds. Unless you are keeping it in the family, which you would than probably want to talk to a lawyer about transferring and having it appraised because there may be further tax consequences after selling. In my case it would have cost more money to transfer and then sell vs sell and distribute the money from the trust. YMMV and I am NOT a lawyer. So could be way off.
 
Yes we want to sell and the money will be split 50/50 between myself and my mom. I'm might end up with all the money. That's up to my mom. If deed/title transfer is not necessary all the better.
 
Right now, the house is owned by the trust. Presumably, your mom is authorized to act on behalf of the trust. If there is a buyer, she signs the deed in whatever way the lawyer at the closing company tells her to. Probably something like 'Martha Evilpilot, trustee'.

Talk to the attorney who set up the trust on how to go about this. I dont see how a transfer into her name would be part of the process, it's the trust that disposes of the property and then distributes the proceeds.
 
I've recently dealt with some of this stuff and here's what I know based on what I was told/did.

If the house is already titled in the name of the trust and your mom is the trustee then most likely your mom should be able to do/sign everything as trustee. Read the trust, they can be set up pretty much however the lawyer writes it.

If the house was not titled in the name of the trust then you might have to go through some process like probate

State laws vary, there are a lot of little things that change situations like this, I'm not a lawyer and may indeed be full of crap, etc.
 
And each State can have different laws in things like this. A local lawyer or the same lawyer who drew up the trust is the one to ask.

edit: Dang, I missed Cowman's last sentence.
 
Matthew said:
And each State can have different laws in things like this. A local lawyer or the same lawyer who drew up the trust is the one to ask.
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This. Why the aversion? Spend $1000 and get it done the right way.

BTW, condolences.
 
If the house is deeded to the trust, the trust can sell it directly. You'll need to find a copy of the trust document to show the trustee has the authority to do that. Every time I buy or sell property the closing wants a copy of the trust ... fortunately they'll take it as a PDF, mine is like 70 pages between the two of them).

If the house was NOT deeded to the trust, that the trust is irrelevant. You'll need a full blown probate to do that (which will require an attorney really). There is a small estate procedure if the total aggregate value is less than $100K. You can contact the Superior Court in whatever county in which she last resided if that is the case and fill out the appropriate affidavit.
 
flyingron said:
If the house is deeded to the trust, the trust can sell it directly. You'll need to find a copy of the trust document to show the trustee has the authority to do that. Every time I buy or sell property the closing wants a copy of the trust ... fortunately they'll take it as a PDF, mine is like 70 pages between the two of them).

If the house was NOT deeded to the trust, that the trust is irrelevant. You'll need a full blown probate to do that (which will require an attorney really). There is a small estate procedure if the total aggregate value is less than $100K. You can contact the Superior Court in whatever county in which she last resided if that is the case and fill out the appropriate affidavit.
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There might be a single page, or maybe 2, called a "Certification of Trust" (or similar, depending on the State) that has all the wording that says the trust actually exists and that the trustee has whatever powers to act as trustee. This can then be copied and given to whoever needs it and lets you keep the rest of the trust paperwork private.
 
A snip it concerning the property of the trust.

Powers of the Trustee.

With Respect to each trust created by this agreement, and the property of each trust, Trustee shall have all powers given it by law and all powers which may be exercised by individuals owning similar property in their own right. Without restriction the generality of the foregoing, the following powers are set forth, by way of illustration of the extent of powers granted and not by way of limitations, to be exercised from time to time by trustee in its discretion.

To sell, exchange, Lease, Grant options to purchase and execute contacts concerning trust property for such considerations and upon such conditions and payment terms as Trustee may determine without regard to the termination of any trust.

I believe this covers the sale of the house.

Thanks for the help.
 
evapilotaz said:
A snip it concerning the property of the trust.

Powers of the Trustee.

With Respect to each trust created by this agreement, and the property of each trust, Trustee shall have all powers given it by law and all powers which may be exercised by individuals owning similar property in their own right. Without restriction the generality of the foregoing, the following powers are set forth, by way of illustration of the extent of powers granted and not by way of limitations, to be exercised from time to time by trustee in its discretion.

To sell, exchange, Lease, Grant options to purchase and execute contacts concerning trust property for such considerations and upon such conditions and payment terms as Trustee may determine without regard to the termination of any trust.

I believe this covers the sale of the house.

Thanks for the help.
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That's part of it, I think. That says what the trustee has power to do. Now you have to determine that the house is titled into the trust. (And in no way am I a lawyer.)
 
Skimping in this area is not a good idea. I'm a lawyer (not the probate kind) and I hire a lawyer to do stuff like that when it comes up in my own family. There are a lot of details and maybe some pitfalls.

Maricopa County Bar Association has a Lawyer Referral Service to steer you to the right kind of lawyer. They charge a flat $40 for an initial half-hour consultation.
 
flyingron said:
If the house was NOT deeded to the trust, that the trust is irrelevant. You'll need a full blown probate to do that (which will require an attorney really). There is a small estate procedure if the total aggregate value is less than $100K. You can contact the Superior Court in whatever county in which she last resided if that is the case and fill out the appropriate affidavit.
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That sounds like the correct answer.


Why did grandma go through the effort of establishing a trust if she didn't transfer the title for the home into the trust ? My understanding of using trusts is to avoid probate and have the distribution 'pre-packaged without the need of probate proceedings.
 
weilke said:
Why did grandma go through the effort of establishing a trust if she didn't transfer the title for the home into the trust ? My understanding of using trusts is to avoid probate and have the distribution 'pre-packaged without the need of probate proceedings.
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When I set up a trust, the lawyer lectured me about the many people who set one up but never get around to retitling their assets. It's a bit of a PITA so I can see how it happens especially if grandma was elderly.
 
weilke said:
That sounds like the correct answer.


Why did grandma go through the effort of establishing a trust if she didn't transfer the title for the home into the trust ? My understanding of using trusts is to avoid probate and have the distribution 'pre-packaged without the need of probate proceedings.
Click to expand...

I'm not sure how to verify the title is in trust? The trust was done in 1989.
 
weilke said:
That sounds like the correct answer.


Why did grandma go through the effort of establishing a trust if she didn't transfer the title for the home into the trust ? My understanding of using trusts is to avoid probate and have the distribution 'pre-packaged without the need of probate proceedings.
Click to expand...
That is the purpose. When my 70 year old grandma set hers up, the lawyer helped with the house but still she missed a couple things... It happens.
 
weilke said:
That sounds like the correct answer.


Why did grandma go through the effort of establishing a trust if she didn't transfer the title for the home into the trust ? My understanding of using trusts is to avoid probate and have the distribution 'pre-packaged without the need of probate proceedings.
Click to expand...

Everskyward said:
When I set up a trust, the lawyer lectured me about the many people who set one up but never get around to retitling their assets. It's a bit of a PITA so I can see how it happens especially if grandma was elderly.
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It's pretty common. You get the trust all drawn up, then have to title all your assets into it. House, bank accounts, insurance beneficiaries, and so on. People generally mean well at first, but then slack off or forget - or just don't understand the process. It's something that you have to keep on top of each time you open a new account or get another asset. You can end up with an empty trust.
 
So the Property address reads this. Names are fake to be confidential even though its public record

Mary Jones "Grandma"
Jackie Smith Trustee "My mothers married Name"


The Deed reads this.

Mary Jones "GrandMa"
Jackie Smith "Mother"
David Y "Grandson "Me"

Thanks
 
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The Quick Claim Deed reads this.

Mary Jones hereby quick claim to Jackie Smith Trustee of Mary Jones.

Beneficiaries
Jackie Smith
David Y

Dated 1989
 
You're really going to need to check out your state's laws here. I'm betting you'll have to go through probate court. If it was the same as what I did you don't actually go to court, you just do an "informal probate" where you have to fill out/notarize a bunch of forms and drop them off at the courthouse.

The main thing here is you can't just sell property that's in someone else's name even if they are deceased. It will have to get retitled into "the estate of_____" or the "______ trust". Your grandmother's will is going to probably dictate how that's done. If she didn't have a will then it's just whatever procedure the state uses, probably gets put into the name of "estate of____".

Seriously talk to an expert... lawyer, the local probate office, whatever. Everything I'm able to tell you is based off what I had to do in WI. Your state may do it differently.
 
Yeah, real estate titles are one thing you don't want to screw up. Even if everything is OK, you really do need someone to review it all.
 
cowman said:
The main thing here is you can't just sell property that's in someone else's name even if they are deceased. It will have to get retitled into "the estate of_____" or the "______ trust". Your grandmother's will is going to probably dictate how that's done. If she didn't have a will then it's just whatever procedure the state uses, probably gets put into the name of "estate of____".
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If the trust was properly done, the house was not owned by grandma at the time of her death and as a result never entered her estate. That's the idea of a trust.

I dont know how this works in AZ, but the wording on the tax record:

Mary Jones "Grandma"
Jackie Smith Trustee "My mothers married Name"

...suggests that the property was in fact transferred into the trust.

For $300 of a local estate planning attorneys time, he could get the official answer to all those questions. Chances are he doesn't even need to retain the attorney to provide any represenation in regards to this matter. If the trust was done right and the accounts and RE are in the trust, it will be as simple as his mom going to the closing with original of the trust document (and a copy) in hand and signing the deed as 'Jackie Smith Trustee'. The house is owned by the 'Mary Jones Trust' and based on the trust document, 'Jackie Smith' is authorized to act on behalf of the trust. Once the property is sold, the proceeds of the transaction go to the 'Mary Jones Trust' and Jackie Smith will parcel out the proceeds according to the trust document.

I would PM member Jonesy. While he wouldn't provide legal advice in AZ, this is an area of law he practiced and lectured about.
 
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Matthew said:
Yeah, real estate titles are one thing you don't want to screw up. Even if everything is OK, you really do need someone to review it all.
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Again, I dont know how this works out west, but around here most closing companies are operated by attorneys. If there were trust or power of attorney issues (buying from absentee owner), the closing company attorney instructed the sellers representative on how to sign the deed.
 
weilke said:
If the trust was properly done, the house was not owned by grandma at the time of her death and as a result never entered her estate. That's the idea of a trust.
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Yeah but part of 'properly done' is putting things into the name of the trust before death. I thought it was automatic before I had to actually deal with one of these myself, it's not.
 
weilke said:
Again, I dont know how this works out west, but around here most closing companies are operated by attorneys. If there were trust or power of attorney issues (buying from absentee owner), the closing company attorney instructed the sellers representative on how to sign the deed.
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cowman said:
Yeah but part of 'properly done' is putting things into the name of the trust before death. I thought it was automatic before I had to actually deal with one of these myself, it's not.
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My recollection is there are two distinct steps: 1) create the trust, 2) fund the trust by re-title. A lot of people do step 1, but a lot don't follow through all the way on step 2, or do it in some way that wasn't the intention.
 
This is something that really varies by state. You already seem to be mixing concepts like trusts and estates, and real estate titles really are something you don't want to screw up. If you don't want to talk to an attorney, try a friend at a title company. As a seller, what you're really going to care about is that your title is sufficient for the title company to sign off on a policy.
 
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