Procedure for real estate that is held in a trust and you are the trustee, you can transfer ownership before or after the sale.

  • If you are the trustee, you can sell the property in the trust as if it was a normal sale under your name. You can then distribute the proceeds to the beneficiary or beneficiaries according to the trust documents. If there are multiple beneficiaries, this is generally recommended as it requires fewer steps.

    When listing the property, you will need to show the trust documents to the real estate agent to confirm you are authorized to sell the property. The title company will also request the trust documents, a death certificate, the trust tax ID number, and potentially a Certification of Trust signed by an attorney.

    After the sale of the property, assets can then be distributed or held in the trust.

  • Another option (which can be a little bit more complicated) if you are the trustee, you can transfer the property to the beneficiary or beneficiaries BEFORE the sale.

    If there are multiple beneficiaries named, it is generally more complicated to re-title the property beforehand than to just sell the property in the trust and then distribute the assets. The options for joint-ownership differ by state and situation, but include: joint tenancy, tenancy in common, or if the joint owners are married, community property.

    You will need to transfer the home title from the trust into the beneficiary’s name or beneficiaries’ names with a deed of trust/quitclaim/grant deed form. You will need to check with a local lawyer about rules on notarization, witnessing, and forms. The deed should include information that the transfer is not a sale so that there is no transfer tax based on the sale price due.

    The trustee then needs to sign the deed as the trustee and file the deed with the local property/land records/county recorder/register of deeds office. If you are transferring the property out of the immediate family, you may also have to file a property value re-assessment form. There may also be a local form that must be filed with the deed.

    If there is a mortgage, the debt will go with the property, unless the trust document says that it must be paid out of the trust before transfer. The new owner then needs to talk to the mortgage organization to see if they can assume the mortgage or refinance.

Procedure for real estate that is in probate:

This section will give you some general information to help you understand what your choices may be, but we still encourage you to talk to a lawyer to get specific answers about your situation. You can usually pay the lawyer’s fees from the property in the case.

Probate means that there is a court case that deals with:

  • Deciding if a will exists and is valid;

  • Figuring out who are the decedent’s heirs or beneficiaries;

  • Figuring out how much the decedent’s property is worth;

  • Taking care of the decedent’s financial responsibilities; and

  • Transferring the decedent’s property to the heirs or beneficiaries.

In a probate case, an executor (if there is a will) or an administrator (if there is no will) is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit), all under the supervision of the court. The entire case can take between 9 months to 1 ½ years, maybe even longer.

Detailed step by step process based on your individual case can be found at https://www.courts.ca.gov/8865.htm?rdeLocaleAttr=en. This should only be used as a guide and an attorney should be consulted to answer all your specific questions.

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