Two Questions from a Reader.

A reader wrote last year: 

"Two questions came to mind that maybe your other readers (and perhaps future clients) might be wondering.  First, if an unmarried couple holds title to a home in Joint Tenancy, is there really a need to add the property to the trust since title would pass outside of probate to the survivor anyway?  Second, do settlors/grantors have to record their living trusts in California in order to effectuate it?  (E.g., do banks, etc. want to see that the trust has been recorded with the County recorder?)"

While there are easy answers to these kinds of questions, it really depends as legal advice regarding estate planning must be specific to that client's needs, desires and situation especially as it relates to the first question.

The second question, to answer it first, a living trust does not need to be recorded to be effective in California. It can be recorded. Reasons for recording a trust should be explored with your attorney as recording a trust makes it a public record.

The best answer to the first question is that while an unmarried couple may acquire property as joint tenants with right of survivorship, it only delays probate of the property upon the death of the second joint tenant after the first joint tenant has died. Also, sometimes a couple may decide that tenants in common ownership is preferred. All the more reason to consult with your attorney, tax advisor and others to determine the best way to hold title to property and how it affects estate planning decisions.

Thanks for the questions. We will try our best to answer them when asked to do so in this blog.

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.