The answer is yes, if, prior to death, the Trustmaker has completely funded the trust with their assets that would otherwise require probate.
What are assets that would otherwise require probate? These include anything titled in the Trustmaker's sole name, without any other owners or any payable on death designation. It also includes assets owned by the Trustmaker with others as a tenant in common that haven't been funded into the Trustmaker's trust.
It doesn't include life insurance and retirement accounts, including IRAs, 401(k)s and annuities, as long as at least one designated beneficiary of the insurance policy or retirement account survives the Trustmaker. But if there aren't any surviving beneficiaries, then the policy or account will become an asset that requires probate.
Julie, when reading your post, I thought you might want to touch on the unique situation in Florida whereby dealing with property.
As you know, generally property which qualifies as a Florida Homestead transfers upon death to designated people without a will or trust or Enhanced Life Estate Deed.
The problem is that title companies are not satisfied with the chain of title, and require an asset which should not be subject to probate to be transferred in a probate proceeding.
This is typically done by the court determining whether the property is a Florida Homestead or not and then whom the beneficiaries of the homestead are based upon the Florida Constitution, Florida statutes, and any will or trust.
Because of this, and recent court decisions, it is now advisable to put your homestead in your revocable trust in most situations to avoid probate.
Generally one needs to be careful if they suspect that they may need nursing home coverage in the next 5 years as a transfer like this could invalidate their coverage.
As a result of this and when there are very small or nor mortgages we often recommend that owners of Florida homesteads use a Florida Enhanced life estate deed or Florida Ladybird deed instead of transferring to a revocable trust.
David Goldman
Apple Law Firm PLLC
331 East Monroe Street
Jacksonville, FL 32202
Tel (904) 685-1200 Fax (904) 212-0678
http://www.JacksonvilleLawyer.pro/
http://www.GunTrustLawyer.com/
http://www.FloridaEstatePlanningLawyerBlog.com/
Hi David, thank you so much for your comments and insights. Florida is indeed a unique state with its “protected homestead” and the laws governing it are quite complex. As such, it is important for Florida residents to consult with a qualified estate planning attorney in order to understand their options with regard to their protected homestead.
Do You Need to Hire an Estate Planning Attorney?
How to Find an Estate Planning Attorney
Questions to Ask a Prospective Attorney
Sincerely,
Julie Ann Garber, Esq.
Your Guide to Wills & Estate Planning
http://wills.about.com
The information contained in this comment is not legal advice and is not a substitute for legal advice. For legal advice, please consult with an attorney.
I live in Utah. I found some great information at this website regarding probate, http://www.doineedprobate.com, which is very helpful in determining if a probate is needed in order to transfer real property.