Sanford J. Mall, J.D., CELA, is the founder and senior partner of Mall Malisow & Cooney, PC, a holistic elder care and estate planning law firm. The firm is located in Farmington Hills, Michigan.
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It's been recommended to me that I Quit Claim my home held jointly with my wife to my revocable trust. Do you agree that that is the best way to go? What's the difference. Either way the house would go to my wife if I die before her.
Thank you for your advise. - T
T:
Great question! Did you have a lawyer assist you in the design and drafting of the trust? If so, I suggest you first consult with him or her for guidance. The reasons most people choose to retitle asset into a revocable trust is control now while you are alive and well, later in the event you become incapacitated, and eventually - after your death. As with any asset, if no one has legal authority to control the asset when the owner(s) become incapacitated or after death - then probate court process becomes necessary.
Even though your wife will enjoy the use of the house if you predecease her, what happens when you are both gone? If you do not retitle the house to have it controlled by your trust after you and your wife are both gone the next in line to benefit from that asset will have to go through the probate process to transfer the house. Additionally, what happens if you and your wife pass in a common disaster? In my experience it is generally best for the property to be titled so that probate process is unnecessary.
The answer to your question could change depending on certain facts. Some additional questions might include the following: 1) Do you and your wife have one trust or two?; 2) Do you have a taxable estate?; 3) Who gets the house after the second spouse passes?; 4) Are either of you have any reason that puts you at high risk of being sued?
In our office we generally do not use a Quit Claim Deed to fund the marital home into a trust. Depending on the specific facts we use a few different options. For us the closest equivalent would be a Warranty Deed. Other methods are also possible to obtain the specific outcomes you desire. Your attorney should be in the best position to know your wishes, your facts and your needs and have the best ability to provide you with specific answers to your questions.
I hope this helps.
All the best,
Sandy
Posted on: Jul 10, 2008
1 comments - Categories:
Julie wrote on 10/27/08 4:49 PM
We have a regular living trust - and the father (owner) of the trust is deceased. Within the trust, there's reference to a GST. How do I title this individuals account using the tax ID of the trust, which is the deceased, but want to have the trust in the survivor trustees name, only?