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Family Law
Frequently Asked Questions about California Trusts (II)
Browse: 1497       Date:03-15-2015     

3. About Assets
(1). What are probate assets?
Any asset that is in the decedent’s name, and not in joint tenancy or in a trust. Assets that are not subject to probate include IRA, 401Ks, and life insurance, assuming that a beneficiary has been named to receive the assets involved. Even these assets might be subject to probate if the beneficiary listed is the “estate” of the decedent or if no beneficiary is listed. Joint tenancy assets become the property of the surviving joint tenant, regardless of the provisions of the decedent’s will or trust.

(2). Can you borrow against the assets in the trust?
Yes. The trust does not restrict your rights to borrow on assets in any way.

(3). Can you transfer property in and out of the trust while you are alive?
Yes. If you have an individual trust you can transfer property without getting anyone's consent. If you have a shared trust, you should get your co-trustee's consent when transferring jointly-owned property.

(4). Can the living trust buy new assets without making an amendment to the trust?
Yes. Title to any assets purchased after the execution of your trust should be purchased in the name of the trust.

(5). Will a Living Trust protect your estate if you have to go to a nursing home?
No. Many people think that putting their assets into a Revocable Living Trust would help them qualify for Medicaid, because the assets would no longer be titled in their name. Because a Living Trust is revocable and under your complete control, you have not "given anything away". An alternative to Medicaid is long-term care insurance, which one would create to pay for the costs of long term care.

(6). What rights does the surviving spouse have in the trusts assets?
If the surviving spouse is a trustee, he/she has unlimited rights to buy, sell and transfer assets.

4. About Real Estate
(1). Doesn't joint tenancy always avoid probate?
No. Joint tenancy does not avoid probate upon the death of the last owner. For instance, if you and your spouse own your house as joint tenants and you die, the house passes to your spouse free of probate. However, when your spouse dies, or if you and your spouse die simultaneously, the property will be subject to probate because there is no surviving joint tenant. Had the house been placed in the living trust, there would not be probate at either death.

(2). More on Real Estate
"If, on the other hand, your real estate is not owned in joint tenancy or tenancy by the entirety, it can be included in a living trust. You will need to change the title of that property to reflect ownership by your trust. There are several issues peculiar to real estate that come into play when property is transferred into a trust. They are as follows:
● Property tax reassessment: Most states, including California, do NOT require a reassessment when you transfer property a trust of which you are trustee.
● Transfer taxes: These taxes, which are normally assessed on real estate transfers, are generally not imposed when the transfer is to a living trust. However you should check with your County Assessor or Recorder's Office, because a few states do impose these taxes on living trust transfers.
● Mortgage interest deductions: You, as the grantor, still have the right to deduct mortgage interest from your income taxes.
● Insurance policies: You do not need to change the registration of insurance policies to the trust for policies that cover trust property.
● Tax Breaks for the Sale of a Home: You still have the right to exclude $250,000 of profit from taxation when you sell your principal home, even if that home is owned by the trust. You may qualify to exclude up to $500,000 of that gain if you file a joint return with your spouse.(*The standard will change as time goes on. Please consult your attorney.)
● Homestead Rights: Generally, these rights, which protect a homeowner's equity interest in his/her home, still apply to property covered by the trust - as long as a statement to that effect is included in the Declaration of Trust.
● Due-On-Sale Clauses: Federal law prohibits lenders from enforcing these clauses when you transfer your principal residence to your trust. If you are concerned about this, however, you may want to get your lender's consent before the transfer.
● Part Interests: You can transfer any part interest you have, such as a time share or percentage ownership, to your trust.

Source: Legalzoom & Rdgtrust & CA-Trusts & Wlrlaw