Q: Does real estate owned by a testamentary trust fall under ‘community property’?
A: A person can only transfer what they have. If someone had a 50% community property interest in real property, that is all the testamentary trust has. The surviving spouse retains the other 50%.
A: You have not provided enough information to answer that question, but most likely the answer is no, the property is the separate property of the beneficiary of the testamentary trust.
A: Depends on when the property was purchased, was it ever refinanced, did both people deed it over to the trust, etc.
A: A property is not owned by a trust. A trust is an agreement, not a person or entity. Property is owned in trust, by the trustee(s) for the benefit of the beneficiaries. Testamentary trusts spring at the death of a testator and are defined in the testator's will. You have not said what role, if any, one of the spouses plays in this agreement. Is she a trustee, beneficiary or both. Or is this in the planning stage and spouses are talking about writing wills that place property in trust? Nina is right based on the assumptions she made. Terry is right making completely different assumptions.
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