Before Doing a Trust, Be Sure You Have Equity in Your Home by Martin Zevin, PA

Wills & Trusts
Before Doing a Trust, Be Sure You Have Equity in Your Home

In this challenging economic environment, legal advice may not be the same as it used to be.

In the last six months, I have turned away several clients who were interested in doing a Revocable Living Trust to avoid probate on their condo or home when they passed away. In those cases where the client had a negative equity (the amount of the mortgage exceeded the market value of the property) I recommended not doing a Revocable Living Trust, at least at this time. Yes, doing a Revocable Living Trust and a Quit Claim Deed transferring the property from the client individually to the client as Trustee of the Trust would avoid probate upon death; however, if heirs inherit property where the mortgage exceeds the property value, I generally recommend that the beneficiaries not agree to accept the inheritance unless the bank holding the mortgage is willing to significantly reduce it to result in some positive equity.

Therefore, I explained to clients, it does not make sense to pay me a fee as well as court costs for recording the deed, when they are not necessarily going to be helping their heirs in bequeathing a property with negative equity.

Granted, this advice results in me losing out on an attorney’s fee; however, I believe it is the duty of every attorney to give the best advice possible even if it means less money in the lawyer’s pocket.

Of course, if you own your home free and clear, or if the mortgage is less than the current market value, it still makes excellent sense to consider a Revocable Living Trust and Quit Claim Deed to avoid probate when you die.

In addition, regardless of the equity in your home, it is extremely important to have current advance care directives to protect you if you are incapacitated. These include the Durable Power of Attorney (which must specifically include the address of your property) as well as the Designation of Health Care Surrogate and Living Will.

Please feel free to call me for a free personal or phone consultation regarding any issue pertaining to Wills, Trusts, Deeds, Probate, Power of Attorney or Health Care Surrogate. I am also available for a free consultation regarding any issue pertaining to personal injury claims or car insurance coverage.