Legal Question in Wills and Trusts in Utah
My husband and I had a revocable living trust which the attorney at that time said it was an A/B trust. It had both of our names on it. My husband passed away and now my name is on it as trustee of the revocable trust and I set up an irrevocable residual trust for his children which they receive at my death. The residual trust includes property located in Utah, and although I was able to quit claim other property in California to the residual trust, my attorney said Utah had different laws and that the property would have to go through probate because it was held in individual trustees' names of a trust (i.e., Mary Brown, Trustee of the Brown Trust. No probate would have been required if title was just in the name of the trust, i.e., The Brown Trust. She advised me to get an attorney licensed in Utah. Do I really have to get another attorney and go through probate for this one piece of property?
2 Answers from Attorneys
All you need to do to transfer the title to yourself as Trustee of the Trust is file an affidavit along with the deed. Any estate planning attorney in Utah can prepare the documents you will need. And no, there is no probate needed.
Title is always held by a trustee of a trust, not the trust itself. In other words, your deed should currently read: Mary Brown, Trustee of the Brown Trust executed [date]. This is normal. As trustee, you have the ability (as long as it is authorized by the trust) to transfer the deed to another person or trust, without probate of any type involved. A simple quitclaim deed or special warranty deed can do this.
If for some reason it is held in a personal name, it is either owned outright or may still have the decedent attached. If the decedent is still attached, it can be transferred using an affidavit (as suggested in another answer) if the property was held as a joint tenant at the time of death. If the decedent did not have an interest at death, then the property can be transferred by you at any time.
My firm handles both estate planning and probate litigation, and we'd be happy to help you with your questions.
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