Q: My mother had a living trust and i have been trustee since her incapacity in 2014 and I am the sole heir.
she passed away in October 2017 and a tract of property was never titled in the trust, although her will says at death any residual property becomes part of the living trust. When I filed her will the estate is in probate but my estate attorney says I need to transfer the property from me as executor to me as trustee and the probate will end. Why was the probate involved if it became part of the trust at her death?
A:
A Will is not self-effectuating. The Will is "accepted into Probate" before it becomes effective. So, for the Will to be acted upon, a personal representative (executor) needs to be appointed, and that executor does as the Will commands. Thus, the property did not become a part of the trust until the executor transferred it there. Under Virginia law, however, real property transfers conditionally on death independent of probate, but your lawyer can explain why that did not apply in the facts of your case.
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