Mark W. Bidwell

A Trust Without a Deed Will Fail to Avoid California Probate Court, Californians create trusts to avoid probate court. A second document, known as a deed, is needed to avoid probate. Trusts are created to avoid probate of real property in California and for the orderly and timely transfer of ownership from a deceased owner to his or her heirs. Many people are under the false impression the listing of the property as an asset of the trust is sufficient to avoid probate court.... Mark W. Bidwell explains the need for a second document, a deed. In California a deed transfers ownership of real property. Deeds must be submitted to the recorder in the county where the real property is located. The deed must be signed by the owner of the real property. The county recorder will not change ownership of someone who has died without a court order. A trust avoids this obstacle to ownership change by allowing for a successor trustee of the trust to step into the shoes of the deceased owner. But the trust must own the real property. Ownership transfer must occur prior to the death of the owner. Even if the real property was transferred into a trust, it may not remain in the trust. In a refinance the lender may require the ownership of the real property to be in the name of the borrowers. This is for chain of title purposes and ease of preparing the loan documents. During the escrow process the lender prepares a deed transferring the real property out of the trust into the borrowers’ names. A second deed is needed to transfer ownership back into the trust. The lender may not prepare the second deed. After a refinance, the borrower should verify ownership with the county recorder or a title company. Trusts without a deed do not avoid probate court. The trust must own the real property. Real property ownership change in California is by deed recorded in the county where the real property is located. Change in ownership must occur prior to death. This Tip Sheet was prepared by Mark W. Bidwell, an attorney in California. Mr. Bidwell market’s primarily through website, www.BidwellLaw.com. Address is 4952 Warner Avenue, Suite 235, Huntington Beach, CA 92649. Telephone is 714-846-2888.

A Trust Without a Deed Will Fail to Avoid California Probate Court, Californians create trusts to avoid probate court. A second document, known as a deed, is needed to avoid probate. Trusts are created to avoid probate of real property in California and for the orderly and timely transfer of ownership from a deceased owner to his or her heirs. Many people are under the false impression the listing of the property as an asset of the trust is sufficient to avoid probate court.... Mark W. Bidwell explains the need for a second document, a deed. In California a deed transfers ownership of real property. Deeds must be submitted to the recorder in the county where the real property is located. The deed must be signed by the owner of the real property. The county recorder will not change ownership of someone who has died without a court order. A trust avoids this obstacle to ownership change by allowing for a successor trustee of the trust to step into the shoes of the deceased owner. But the trust must own the real property. Ownership transfer must occur prior to the death of the owner. Even if the real property was transferred into a trust, it may not remain in the trust. In a refinance the lender may require the ownership of the real property to be in the name of the borrowers. This is for chain of title purposes and ease of preparing the loan documents. During the escrow process the lender prepares a deed transferring the real property out of the trust into the borrowers’ names. A second deed is needed to transfer ownership back into the trust. The lender may not prepare the second deed. After a refinance, the borrower should verify ownership with the county recorder or a title company. Trusts without a deed do not avoid probate court. The trust must own the real property. Real property ownership change in California is by deed recorded in the county where the real property is located. Change in ownership must occur prior to death. This Tip Sheet was prepared by Mark W. Bidwell, an attorney in California. Mr. Bidwell market’s primarily through website, www.BidwellLaw.com. Address is 4952 Warner Avenue, Suite 235, Huntington Beach, CA 92649. Telephone is 714-846-2888.

The main reason to add a spouse as owner is to protect the other spouse in the event of death of the owner spouse. The non-owning spouse is added as either a joint tenant or as owner of community property with the right of survivorship. Both ownerships avoid probate and protect the surviving spouse. The risk of joint ownership is in a divorce. Adding a spouse on title to separate property converts the property into community property. In a divorce community property is divi...ded equally between the two spouses. To complicate matters there is a capital gains tax advantage to community property. Federal estate tax law and California community property law work together for the surviving spouse to receive a full step-up in basis on real property. Capital gain tax is computed on the difference between the selling price and the basis of the property. The best way to protect the other spouse in the event of death while preserving the separate property status is with a trust. The separate real property is transferred into the trust. But the capital gains advantage is lost. A spouse owning separate real property must weigh the capital gains advantage, spouse protection and the risk of divorce in joint ownership. A trust protects both spouses in divorce and death, but may have a tax disadvantage and does have upfront costs. Adding a spouse on title to separate property converts the property into community property. Such is the complications of owning real property in California.

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