In a Sale
What This Means When the House Is Being Sold
This is the single most common reason a carefully planned trust fails to avoid probate entirely. The trust document exists, sometimes drafted by a respected attorney years earlier, but the house was never actually deeded into the trust's name, meaning it still legally belongs to the individual, and it goes through probate exactly as if no trust existed at all.
The fix, when funding was never completed and the person has since died, is generally probate itself, sometimes aided by a pour-over will if one exists, moving the property into the trust after the fact rather than avoiding the process the trust was meant to prevent from happening.
Confirming funding is straightforward while someone is alive, since a title check against the recorded deed settles it, and it is worth doing well before it actually matters.
Sequence
What Usually Happens
Compare
Not to Be Confused With
- This TermTrust Funding
- Often Mistaken ForRevocable Living Trust
- Often Mistaken ForPour-Over Will
- Often Mistaken ForSchedule of Trust Assets
What Tells Them Apart
A revocable living trust is the document establishing the trust's terms. Trust Funding is the separate, essential step of actually moving assets into it, which many families skip or forget to complete. A pour-over will is the backup that catches assets left unfunded, though it requires probate to do so. Schedule of Trust Assets is often the fastest place to check whether funding was intended, though the recorded deed is what actually confirms it.
Questions
Questions People Ask
Why does a trust sometimes not avoid probate even though it was properly drafted?
Because the trust document alone accomplishes nothing without funding, the separate step of actually deeding assets into the trust's name. A well-drafted trust that was never funded offers no probate avoidance, since the property legally still belongs to the individual rather than the trust at the time of death.
How can I check if a house was actually funded into a trust?
The recorded deed is the definitive answer, showing whether the trust or the individual currently holds title. A trust's schedule of assets can suggest intent, but the recorded deed is what a title company relies on. Checking this while the owner is still alive allows time to fix a gap before it matters.