Q: when I die - is it better for my primary residence be in a living trust or my last will and testament?
A: The answer very much depends on who you want to leave it to, and how much trust you have in someone to act as a trustee.
It depends. If you want your primary residence left outright to someone, a trust is better because with a Will, it has to be probated and there are statutory executor and attorney fees to be paid that most often will result in the home having to be sold to pay them, so the person you wanted to leave your home to is just is going to get cash left over after the sale less RE commissions and probate attorney and executor fees. And probates can easily take a year to get through and in addition you have filing fees, probate appraisal fees, publication fees, etc.,
With a trust, if your beneficiary wants to live in or rent the home, the home is just transferred outright to them. They can then sell the home if they want to with little more than real estate commissions to pay.
With regards to the comments about trusting your trustee, that is a personal decision. A trustee has certain fiduciary duties to beneficiaries and if the trustee is not doing their job, the beneficiaries will almost always call them to task or have them removed. If you only have one beneficiary, or beneficiaries who get along, you can make one of them or more the trustee as well. Just be aware that in California joint trustees have to act jointly so if there is disagreement it can result in litigation that will be just as expensive as probate, so choose your trustee wisely.
Best of luck,
Priscilla A. Madrid, JD, LLM Estate Planning and Elder Law
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.