Legal Question in Wills and Trusts in California

Property not held in Trust = Unfunded Trust

When property is held by the founder (settlor) of the Trust, rather than by the Trust, if the settlor has died, Probate is required. Assuming that a "pour-over" Will has been executed, it passes through Probate, into the Trust.

Of course, if the Settlor is alive, he can deed the property into the Trust.

If the lawyer who drafted the Trust improperly failed to transfer the property into the Trust, suggest that he do the Probate for free. If the property is worth more than $100,000 (gross value), full Probate is required.

Property in settlors' name

Need to have probate with regard to settlors property held outside trust unless held in joint tenancy

Propery not recorded in trusts name

Assuming that the person who created the trust and holds title to the property is deceased and therefore cannot presently correct the error you have these options:1. If there is any refernce in the trust doucment that indicates the intent that the property be an asset of the trust, then a Petition under Probate Code Section 17200 and the authority of the Heggblade case in the superior court of the county where the trust is being administered should be filed with a request that the court order the property to be an asset of the trust estate. After the order is made by the court and a certified copy recorded in the county in California where the property is located, the property will then be in the trust and can be administered under the trust terms without any further involvement of the court.2. If the property is valued by a California Probate Referee for no more than $100,000 and there was also a "pour-over will" prepared which transfers administered property into the trust,then a Petition can be filed by the successor trustees of the trust with the superior court of the county where the creator of the trust lived to have the property transferred to the trust. This is not a full probate proceeding and only involves transferring the property to the trustee.3. Alternatively to #2, and only if there was NO pour over will, then the trust creators heirs may file the same petition in the same court and the court wilkl make an order transferring the property into the nmaes of the trust creators heirs. This will bypass the provisions of the trust but, undre the circumstances, may acheive the same result as the trust and still avoid a ful probate proceeding.If #1, #2 or #3 are not available, then a full probate of the property will be required.