The Home Is in a Trust
When a home is owned by a trust, responsibility for the property may be different from responsibility for the probate estate. Before managing, transferring, listing, or selling the home, confirm how title is held and who has legal authority to act.
Families often think of a loved one's home as part of the estate. But if the property was placed into a trust during the owner's lifetime, the trust may own the home instead. That distinction can affect who has authority to make decisions about the property.
Executor and trustee are different roles
An executor is responsible for administering the probate estate. A trustee is responsible for managing property held in a trust. Sometimes the same person serves in both roles, but that should never be assumed.
If the trust owned the home at the time of death, authority over the property may belong to the successor trustee rather than the executor.
Start by confirming how the home is titled
Before making significant decisions about the property, determine who legally owns it. A deed can help establish whether the home was owned individually, jointly with another person, or by a trust.
Do not assume that a home belongs to the probate estate simply because the person who died lived there, paid the expenses, or considered it their home.
Locate and review the trust documents
If the property is held in a trust, locate the trust agreement and any amendments. These documents may identify the successor trustee and contain provisions affecting how the property should be managed, distributed, transferred, or sold.
Trust documents can be complex. When the meaning of a provision or the trustee's authority is unclear, an estate or trust attorney should review the documents before major decisions are made.
Who has authority over the home?
The person named as executor in a will does not automatically have authority over property owned by a trust. Likewise, beneficiaries of the trust do not necessarily have individual authority to manage or sell the property.
Identifying the current trustee and confirming that person's authority is an important step before signing agreements or making irreversible decisions involving the home.
Before listing or selling the property
Before a trust-owned home is listed for sale, confirm who has authority to act for the trust. The REALTOR®, attorney, and title company may need information about the trust and trustee so the transaction can be handled correctly.
When the executor and trustee are different people
Estate administration and trust administration can overlap in practical ways. The executor may be handling bills, belongings, taxes, or other estate matters while a different person serves as trustee and controls the home.
Clear communication between the executor and trustee can help prevent confusion about expenses, access to the property, personal belongings, maintenance, and decisions about a possible sale.
Beneficiaries and disagreements
Trust beneficiaries may have important interests in the property, but those interests do not necessarily give each beneficiary authority to make decisions about the home.
If beneficiaries disagree, the trust provisions are unclear, or there is uncertainty about the trustee's authority, professional legal guidance may be necessary before proceeding.
Quick Reference
- Confirm how title to the home is held.
- Locate the trust agreement and any amendments.
- Identify the current or successor trustee.
- Do not assume the executor and trustee have the same authority.
- Understand any trust provisions affecting the property.
- Confirm authority before listing, selling, transferring, or making major decisions about the home.
- Seek legal guidance when ownership or authority is unclear.
Helpful Tip
When a trust is involved, the first question is not simply, "Who is the executor?" Start with: "Who owns the property, and who has authority to act for that owner?"
Working with professionals
Trust-owned real estate can involve overlapping legal, title, and real estate questions. Understanding the different roles of the professionals involved can help you know who to turn to and what questions to ask.
Continue Your Journey
Need personal guidance?
Every estate is different. If your question involves legal advice, you should speak with a qualified New Jersey estate attorney. If you are dealing with an estate property or want to talk through next steps, Dennis can help.