Often times when people come to my office to set up a Trust they ask me about what would happen if if they forget to title their house or car or bank account in their Trust. This often happens in situations when people are in a rush to do their Trust. While most of the time I recommend that at the very least their Real Property be titled in the name of the Trust, there are times when this is impractical, such as when a person is going in to the hospital next week for a surgery and they would like to have something in place before they go in for a surgery "Just in Case".
In these situations, what would usually happen is that I would draw up a Trust, and include a "Schedule of Trust Assets". I would list with as much particularity as possible the nature of each asset such as "Personal residence at 123 Elm Street, with Assessor Parcel Number xyz". I would also mention "Schwab Account Number 54321 with a balance of approximately xyz". All other Real Property and Financial Assets that the grantor wants to go into the Trust should be mentioned in the Schedule of Trust Assets as an Attachement. Simultaneously, I would draft a "Pour Over Will" which is a basic Will that stipulates that all of of the Testator's assets can go into a Trust.
If these two measures are taken, even if, for example, a grant deed on the Elm Street Property is never recorded it should be fairly simple to transfer the assets into the Trust even if the Grantor passes away before transferring the assets. The procedure in California is very simple. It is known a Motion to Confirm Trust Assets, also known as a Heggstad Petition. With a Heggstad petition, Trust Assets can be confirmed and transferred into the Trust without the necessity of Probate or Intestacy. Interestingly, right out of Law School, I worked as a Contract Attorney for the attorney who invented Heggstad Peitions and worked on my first Heggstad petition under his supervision and since that time I have helped a number of Estates transfer assets into a Trust through Heggstad petitions..
So, the bottom line, if you forget to transfer assets to your Trust before you pass away, there is still hope that your assets will pass through your Trust rather than through Probate or Intestacy BUT you must be sure that the assets are included in the Schedule of Trust Assets AND There is a Properly Drafted Pour Over Will.
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