Legal Question in Real Estate Law in California

There are sometimes disagreements among the attorneys on this site as to what the law is as regards a particular situation or what the best approach is. There are two points, however, where we all agree. never made an irrevocable as opposed to revocable trust, never give your house to your kids while you are still alive. I hope you have not been foolish and done either one of these.

What rights the children have depends entirely on what right you give them in the trust. A trust does not remove your home from public documents but can protect it from a lawsuit against you personally. But car and homeowners insurance will also do that 99% of the time.

Mr. Shers needs to poll us better. I only MOSTLY agree with him. First off, there are a great many reasons to create an irrevocable trust, but they are very situation specific and tend to only apply to high net worth individuals. We do all agree you should not do that if you do not have top notch estate planning legal advice behind it. We definitely all agree you should not make a straight gift of real property to your children while you are alive. I also have to point out that he contradicts himself in his answer. After saying never put your property into an irrevocable trust, he says that a trust can protect your assets from a lawsuit against you personally. Well the only trust that can protect your home from your creditors is an irrevocable trust. All of which is a long way of saying do not get advice on this kind of issue from the internet. Pay a lawyer a few bucks to put his or her malpractice insurance on the line by giving you real bought and paid for estate planning advice.

The best protection against a lawsuit is to behave yourself and obtain insurance when and where necessary.

Results of the poll:

"However, deeding property to ones children while you are alive is 99.9% of the time one of the most foolish things you can do." Timothy McCormick, 6/17 answer.

He is correct that I should have said "almost never."

The only thing that needs to be added here is that a transfer of real property to an irrevocable trust for one's children can be attacked as a fraudulent transfer if the purpose or effect of the transfer is to "hinder, delay or defraud" the transferor's existing or feared creditors. If you have just had a car accident, for example, and are being sued for more than your insurance, placing your home in an irrevocable trust with your children as beneficiaries is likely to be set aside by a court after the injured party gets a judgment and starts making collection efforts.