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By: Scott Grossman on January 8th, 2018

If There is a Trust Do I Still Have To Do Probate?

Often the question comes up If my parents had a trust do I still need to do probate?

Well, the likely answer is no. The reason people create trusts is to avoid probate. Well, at least that is one of the reasons people do it. So if your parents have a valid trust, and if that trust was funded with their property, then you will not have to do probate.

But there are times when people create trusts, and probate is still necessary.

Sometimes what happens is that your parents created the trust, but one or more of their assets did not get funded into the trust. Something that I see from time to time is that they have created the trust and what happened is that either their home was never transferred by a deed into the trust. Or it went into the home but at some point, along the way it came out of the trust.

The common reason for this is:

  • They got a reverse mortgage
  • They did a refinance on the house

Whatever the reason, when they died, the title was held in their name as instead of as trustee to their trust. When that happens, you may be able to do a particular type of petition called a Heggstadd petition, which is a particular type of petition that is filed in probate court, which asks the court to bring the property back into the trust to avoid probate. That often can be a good solution, but there are times when that is not applicable and you’re going to have to probate because there is no way around it.

Another thing that I sometimes see is people who have done trusts and they have not gone to an attorney. They went to some kind of “trust mill.” A financial planner, usually a low-rent financial planner or annuity salesperson. They basically just generate boilerplate documents for people.

There can be a couple of problems with this.

  • Sometimes the documents are invalid on the face. Use of some out-of-state form, even though they know full well you are in California, and it does not meet California’s basic minimum standard. So now you do have to do probate because you don’t have a valid document.
  • Sometimes they do a valid trust document and people walk away feeling good believing they have done their plan, but no funding ever occurred. It doesn’t matter they have this trust document, no property was ever placed into it.

So the answer to the question of if my parents had a trust, do I still need to do probate really depends on if the trust was created properly and funded. When your parent has died, do some double-checking and make sure it actually got funded and if the trust was not funded then you may have to do probate.

If you need to do probate, are not sure if a trust is valid, or think you may need to do a heggstadd petition or just have questions about completing probate, do not hesitate to contact our office today or via phone at 888-443-6590.