How to change name on title of home after death of spouse?

December 15, 2022 4:27 PM

My husband passed away this year. We have a trust and our home is in the name of the trust. I don’t know if I can leave it in the name of the trust or if I am supposed to change it over to my name. And I don’t know who to ask questions about this.
posted by cda to Law & Government (20 answers total)

Is the lawyer or law firm that set up the trust in the first place still in business? I would start there. Otherwise, another lawyer that specializes in estates and trusts.
posted by rockindata at 4:33 PM on December 15, 2022 [4 favorites]

All trusts have trust administrators! The reason that trusts exist is to serve and protect the interests of beneficiaries. It is likely that you and your husband were once the only actual beneficiaries, and that now you are the only actual beneficiary. Call the trust administrator tomorrow: the trust is there to serve you, and one of the TA’s jobs is to answer all of your questions.
posted by PaulVario at 4:34 PM on December 15, 2022 [6 favorites]

If they're still around, you could probably save yourself a lot of grief by talking to the lawyer who prepared the trust in the first place. When my father died, that lawyer wasn't still around, but I had my mom's trust lawyer guide me through a bunch of stuff, along with property transfers and things like that. If you were involved in creating the trust, I'd guess that the trust is still active and you'll probably just keep your home in it, but you'll probably want to talk to them anyway just to make sure the trust is up to date as far as beneficiaries and other things.
posted by LionIndex at 4:35 PM on December 15, 2022 [1 favorite]

Response by poster: The original lawyer wants to charge me thousands of dollars to answer any questions. She won’t answer any questions she only wants to charge to to make a new trust. She said I need a new trust. So I got a new lawyer and he is Mia. Does not answer the phone. I have already paid him to help me close the estate. Everything is finished but this one thing. There is no administrator for the trust unless you are talking about me. I am the only person in the trust. I think I am called the successor trustee. I just need to know if I should put the title in my name now. I am wondering if I have to put the title in my name. Maybe I need to talk to the county clerk? Someone told me I need to talk to a title company. I didn’t know this was complicated. I thought someone would know here. Do I really need to hire a lawyer?
posted by cda at 4:56 PM on December 15, 2022

Wow, that advice does not make sense to me. All I know is what my lawyers told me about our trust. In ours, when one spouse dies, the assets of trust get split in half - one trust would be mine as surviving spouse and I could do whatever I wanted with it. The other trust will become irrevocable (I can't change it any more) but I get access to all the money during my lifetime to pretty much spend how I wish but I can't give it or will it to someone else - when I die, my husband's half gets passed according to the rules of trust at the time he died. That is just one trust structure - maybe in your case the trust is dissolved and all of the property belongs to you.

Bottom line: the terms of the trust determine who owns the house now - you or the trust. One clue: I assume you had other assets owned by the trust like investment accounts? If so, did the lawyer have those funds put in your name or did they stay in the trust? In any case, You probably need your MIA lawyer to read the trust and tell you what it means.

If you find out that you should put the title in your own name, there is typically just a form that you fill out and get notarized and then file with the county clerk's office. That was what we did to transfer title from our own name into the trust. I don't think you need a title company - hopefully you did that part (title research and title insurance) back when you bought it. But none of this is of any help until you know IF it should be in your name.

I'm sorry this is such a mess!
posted by metahawk at 5:10 PM on December 15, 2022

The advantage of the trust - please talk to a lawyer about this - is that when you retire Medicare can draw payment from all of *your* assets for your care, but the trust isn’t yours and the house isn’t considered an asset. You get to keep your home whether you convert it to a residence or equity or just leave it where it is.
posted by bendy at 6:31 PM on December 15, 2022

^^^... please talk to a lawyer about this ...

The OP has had dealings with two lawyers in connection with this trust.

1. The lawyer who set up the original trust.

OP tried to talk to that lawyer, but that lawyer won't answer questions until and unless OP retains her (the lawyer) to set up a new trust.

2. A new lawyer.

This lawyer is MIA and OP can't reach him on the phone.
posted by virago at 6:42 PM on December 15, 2022 [1 favorite]

So as not to abuse the edit window:

bendy, I hope it doesn't seem like I'm brushing off your point.

You present information that is valuable for OP to reference when she talks to her MIA lawyer.
posted by virago at 6:56 PM on December 15, 2022

I’m sorry you are having so much trouble getting response from the lawyers but I have to assume the trust was created for some specific tax or estate planning purpose. Since you seem uncertain about that purpose I’d advise patience and not changing anything until you do find and get consultation from a lawyer. It is frustrating but may save the home for you to live in.
posted by meinvt at 6:56 PM on December 15, 2022 [1 favorite]

Response by poster: It sounds like what I need to do is hire a real estate lawyer. I could push to get answers from lawyers 1 and 2 but honestly I’m not confident they know what they are doing. And I try Googling questions and am just lost. I want to try to avoid getting another trust because I think I don’t need it. It’s too costly and overkill for my situation. I think.
And bendy I think you mean Medicaid - that a trust would protect my home from a Medicaid spend down. I don’t think it does. But I will ask my next lawyer. That has been on my mind so thanks for bringing it up.
posted by cda at 7:49 PM on December 15, 2022 [2 favorites]

I'm sorry for your loss. While you're waiting, you can try browsing/asking on Bogleheads . For example: this question.
posted by skunk pig at 9:55 PM on December 15, 2022 [1 favorite]

Whatever you do regarding a third lawyer or not, please contact your state bar. They probably have some type of client assistance office. The lawyer you paid should either answer your calls or refund your money. Or at least explain why they haven't.
posted by Happydaz at 10:36 PM on December 15, 2022 [2 favorites]

If you go with a third lawyer, stick with a trust lawyer not real estate lawyer. The trust is your issue and very different from real estate transactions.
posted by mightshould at 1:49 AM on December 16, 2022 [2 favorites]

CDA, keep trying to find a third lawyer to answer this question, but know that it is not urgent. You are right about bendy's comment, on both points. It is Medicaid, and having the home in a trust is probably not related to keeping it non-countable for Medicaid purposes. (And if it is related, you need to keep it in the trust.) Depending on your state, it may protect it from post-mortem estate recovery laws, where the state Medicaid agency becomes a creditor to the extent of the money it has paid during the decedent's lifetime for nursing home care.

That the original lawyer will not answer any questions and says that you need a new trust done, sight unseen, is appalling to me (based on the limited information we have). You no doubt spent a couple of thousand dollars, or more, for an instrument that was supposed to see you through life's changes without having to be reconstructed when one happens.
posted by yclipse at 4:46 AM on December 16, 2022 [2 favorites]

I agree you need to keep trying to talk to a lawyer in the trusts/wills area, but do not panic or rush to do anything. Don’t stress - this is probably fine without any change. The trust is very likely a living (revocable) trust for the benefit of you and your husband. (You can check this on the first few pages of the document.). His death likely does not change anything except that now you are the only beneficiary. The property stays in the trust - ie, the trust continues to own the house - until you pass away, and then the trust document will say what happens to the property after that. Generally, the point of a trust would be defeated by pulling assets out of the trust in your situation. A lawyer could figure this out in about 1-2 hours of time with your trust docs, so just find someone in this area to read your docs. Ask around for referrals - friends, church or other groups, etc.
posted by Mid at 5:35 AM on December 16, 2022 [1 favorite]

I am in the middle of probate and a trust, as personal representative and trustee and 100% beneficiary of everything. But we were not married, and it was his trust alone. No way would I ever set up a trust again unless I was using it to give someone an allowance rather than just holding things to avoid probate. But the house wasn't difficult, it was titled to the trust and I as trustee was able to file a "trustees deed" and put it in my name. It wasn't much money to have the lawyer type up and send in the deed...couple hundred $ I think. But I am using a probate/trust/real estate attorney to help me with everything. I am in Florida.

Trust lawyers have all these sales pitches for why people with no major assets, just a house and a few retirement accounts say, would benefit from a trust, but in practice it wasn't beneficial. And the kind of trust you all, and we have, does not protect anything from creditors or Medicaid. I will not be using a trust going forward.
posted by southeastyetagain at 5:43 AM on December 16, 2022

Yes you may need a lawyer, but have your read the trust document? The legalese in it may be dense, but it is written in English. It will tell you things like who the trust administrator is, who the trust beneficiaries are, and what happens when someone dies. This is the first thing any lawyer will do, and then they will charge you to tell you what it says. Try it yourself, first. You will probably discover that your husband's death has no effect, that in the event of his death you automatically become the trustee/administrator (you mention someone said you are the successor trustee) and that nothing needs to be done at all, unless you find language in the trust itself that says it expires after someone's death. Then, somewhere down the road, if you want to think about changing your will in any way, visit a lawyer to do that, and see whether they think the trust needs to be changed for some reason.
posted by beagle at 6:23 AM on December 16, 2022 [2 favorites]

First, I agree with PaulVario. Who's the trustee? Speak to them first. If that doesn't get you the answers you need, get a new lawyer in trusts and estates. Often trusts are set up for tax purposes, to save the beneficiary or the estate from taking a bit hit. You'll want to know what the trust does before you do anything else. Sometimes trusts are set up to protect the beneficiary. You really need to speak with someone who specializes in trusts to find out what's up.
posted by ceejaytee at 7:20 AM on December 16, 2022

The OP is the trustee according to her comment. This is probably a living trust where the married couple are both the trustees and the beneficiaries. Nobody else is administering the trust.
posted by Mid at 7:26 AM on December 16, 2022

My trusts/estates lawyer could help you, either directly or by referring you to someone in your state. LMK if you want a referral.
posted by JimN2TAW at 10:37 AM on December 16, 2022