home trust?

Question

if a home is left in awill, and the deed is in trust to someone can it be taken away?

Answer 1

As an attorney practicing in Michigan, I can only tell you what I'd otherwise tell a Michigan resident. Which is: once the deed to the house is drafted and filed with the Register of Deeds, then the house is owned by the trust. Now, usually a trust is set-up as what is called a "Revocable Living Trust". The purpose of this trust is so that you can avoid probate and (typically) tax burdens on the receipient of the home.

You, as the Trustee of the Trust, have the ability to deed things in and out of the trust. Once you die, however, your successor trustee steps in and takes your place...with all the same rights as you had when you were alive (save any specific requirements as per the trust).

Therefore, once the Trust becomes the "owner" of the home, any subsequent will (with regard to the house) is unenforceable since you didn't own the house at the time you're attempting to give it away--the trust did. The problem, however, is that the person named in the will to get the house will probably contest that Trust provision of the house because the will was made AFTER the trust. Therefore, the devisee of the house will argue that the fact the will was made after the trust was drafted, it clearly shows an intent by the owner that he was revoking the provision in the trust as to who the beneficiary to the house is, and instead, is leaving the house to the person named in the will.

On the other hand, the successor trustee is going to argue that the person who created the trust and had the house put in the trusts name couldn't give the house away via a will because the house was now owned by the trust itself. Therefore, any will (even if subsequent to the trust) attempting to give away the house will fail because the testator didn't have possesion of the house to the extent that he had a divisible interest.

Whew, not an easy question you asked! =D

Answer 2

I am pretty sure that a person can not give something to one person that is in trust for another. The home belongs to the person with the trust. I would speak to the law office that drew up the will, I suspect that the will is outdated.

Answer 3

It depends. I'd need to read the will and the deed to be able to tell you. It may be possible and it may not be. Supporting documentation for the deed would be nice to have as well. It may not be possible to take the home away from the trustee, however, again it may be possible. It really depends, and more information is needed to make such a determination.