Many people use their last will and testament to pass on money and belongings after they die, but some people could benefit from using a trust to pass on their house or other valuable assets.
A trust is a legal arrangement in which you can place your money, possessions, and other assets so they can later be used by you or your future heirs. A trust isn’t just for rich people. Trusts can offer greater control than a will over who will get your money and possessions after you die. Unlike a will, trusts can also include instructions for how or when your beneficiaries will receive the assets. If you want to pass on certain assets before you die, a trust may also help.
One of the main reasons people put their house in a trust is because assets in a trust do not go through probate after you die, while everything you bequeath through your will does go through probate. Probate is a public process and allows anyone to see what was in your estate when you died, how much your estate was worth, and the people who received your things. Using a trust to pass on your house can also transfer ownership faster than a will would have.
You can generally still sell your house after putting it into a trust, depending on the exact language of your trust’s founding document. You can also move your house into a trust if you’re still paying off a mortgage; moving a house into a trust won’t trigger a “due on sale” clause. Placing your house into certain types of trusts can also help you qualify for Medicaid by decreasing your taxable estate.
7 reasons to put your house in a trust
Your personal circumstances will dictate whether or not it’s a good idea for you to put your house in a trust. To help you make your decision, here are seven common reasons to put your house into a trust:
Your house (and everything else in the trust) will avoid probate after you die.
Ownership of the house can transfer to your heirs faster from a trust than through probate.
Wealthy estates may avoid or minimize estate taxes with an irrevocable trust.
Trusts allow you to add conditions for how or when heirs receive an inheritance.
A trust, unlike a will, can help you pass on assets even before you die.
Placing a house in an irrevocable trust can help you qualify for Medicaid by decreasing your taxable estate.
With an irrevocable trust you can get asset protection from creditors, including nursing homes.
Trusts avoid probate
The ability to avoid probate is a major reason that many people put their house or other assets into a trust. Probate is a process where a court, after you die, proves the authenticity of your will and your possessions are passed on to your heirs.
The contents of wills and estates go into the public record after the probate process is completed, so anyone could see what you owned, how much it was worth, and who received it after you died. Transferring assets via a trust is a private process.
Probate can also drag out in certain cases, potentially costing a significant amount of money and lasting for months or even years. Trust assets are only passed on according to the instructions in the trust document, so you can help your heirs avoid a long and costly probate.
Situations where probate may drag out include if your estate is large; if you left unclear instructions for bequeathing your assets; or if you have assets in multiple states. (Each state has its own probate laws so moving a house from another state into a trust could especially simplify things for your heirs.) Issues can also arise if someone contests your will to change how your assets are distributed. For instance, someone may contest a will to get full or partial ownership of valuable assets like a house, investments, or a patent you owned.
Trusts help you pass on your house before you die
Trusts make it possible for the grantor (the trust’s creator) to place conditions on when and how beneficiaries will receive the trust assets. That means you could move your house into a trust and then transfer ownership to someone else even before you die (like by setting it up as a trust fund). For example, you may choose to pass on your house should you go into long-term care or become incapacitated. A will can only transfer assets after the grantor has passed away.
Tax benefits of transferring a house through a trust
Moving your house or other assets into a trust (specifically an irrevocable trust) can decrease your taxable estate. For a wealthy estate that could otherwise be subject to a state or federal estate tax, putting assets into a trust can help avoid or minimize the estate taxes. Estate taxes generally apply only for estates worth millions of dollars.
Reasons not to put your house in a trust
There are two main reasons you may not want to move your house (or other assets) into a trust:
You don’t want to pay the cost of setting up and maintaining a trust.
You still have to wait for other assets to go through probate.
The cost of setting up a trust varies based on where you live and the exact details of your trust, but drafting the legal paperwork for a simple trust will likely cost $300 or more if you work with an estate planning attorney. Creating a larger or more complicated trust — like one that contains your entire estate or has more restrictions on when your beneficiaries can receive their trust assets — could potentially cost you $1,000 or more.
After creating your trust, you must also pay to maintain it. Maintenance won’t be a significant cost for everyone, but it might be if you hired someone to serve as your trustee (the person or corporation who maintains your trust and the assets within it).
The cost of a trust also may not be worth it for you if you still plan for other assets to go through probate, especially valuable possessions that could slow down probate or result in a contested will. However, if your house is the only big investment you own, using a trust just for that house could be worth it.
Keep in mind that if you use a testamentary trust — a trust that’s created via your will — your assets will still go through probate before going into the trust.
Another way to give someone your house is with a transfer-on-death deed. This estate planning measure is less costly and can still help you avoid probate.
How to put a house in a trust
After you've set up a trust — by creating a trust document that outlines your beneficiaries and the terms upon which they receive the property — here's how you can put your house and other real estate property in it.
Prepare a new property deed. You can copy the old one and update the necessary information, like making the trust the new owner. The format is usually [Trustee's name], trustee of the [trust name] like this: "Jane Smith, trustee of Smith family trust."
Get it notarized. You and any other owners of the house need to sign the deed in front of a notary public (for a small fee) to authenticate the deed.
File the deed with the proper office. The final step of putting your home in a trust is recording the property transfer with the county clerk's office, which holds local property records in your area.
If you want to transfer property out of the trust you can take the same general steps.
Do you need a trust if you have a will?
If you have a small estate or if you’re leaving everything equally to a spouse and children, then a will may be all you need. However, a well-made trust can give you more control over when and how your house is transferred to someone else. For example, you could set up your trust such that your house passes to your chosen beneficiaries before you even die.
As mentioned above, using a will can also leave issues in probate if someone doesn’t like their inheritance and challenges your will. A house is the most valuable asset in many people’s estates, so tensions between your heirs may rise if you leave a house entirely to one person — like if you give it to one child and your other children get nothing. Using a trust to bequeath your house increases the likelihood that your house will go to the intended beneficiary, without your family having to go through an expensive or protracted legal battle.
If you do choose to put your house in a trust, ensure that the instructions in your will and trust are in agreement. (For example, if you put your house in trust, then you should not put it in your will.) Having competing information could cause confusion among your family members, even if it ultimately doesn’t affect probate.
Should you put your house in a revocable trust or irrevocable trust?
A revocable trust, also called a living trust, is one that you create while you’re alive and that you can revoke (close or modify) at any time. An irrevocable trust is one that you cannot close, either because you structured it such that you cannot revoke it or because you have already died.
Many people use a revocable living trust because it gives them more control over the trust assets. Putting your house in a revocable trust still allows you to change the terms of the trust or remove the house from the trust if you want to. Taxes and personal finances are generally easier to manage with a revocable trust. A revocable trust becomes irrevocable after you die since you can no longer close it.
Irrevocable trusts do offer some distinct advantages, though. You may want to put your house in an irrevocable trust if you need to lower your taxable estate for Medicaid eligibility or other income-restricted programs. Assets in an irrevocable trust usually cannot be claimed by a creditor, offering you asset protection in the event you need to repay someone. Assets in an irrevocable trust are also safe from the Medicaid estate recovery program.
If you’re considering an irrevocable trust, know that it will have to pay its own tax returns (the trust manager, trustee, would file the returns). You may also want to have someone other than yourself manage it, for legal reasons.
Talk with an estate lawyer to learn more about what type of trust of best for your situation.