Placing a house in a trust is a common estate planning strategy that can help manage assets, reduce estate taxes, and avoid probate. However, if the property has an existing mortgage loan, the process can be slightly more complex. This article will guide you through the steps of putting a house with a mortgage into a trust, including understanding the types of trusts, the benefits, potential pitfalls, and the detailed process involved. In this article we will reveal how to put house in trust with a mortgage loan.
Creating trusts can become complex and, if not structured correctly, can lead to estate tax issues, ownership confusion, distribution complexities, and other problems. We recommend connecting your estate planning attorneys with Smart Lending lenders who can help you understand these decisions, as well as the advantages and drawbacks of placing a home and other mortgaged real estate into a trust.
Understanding Trusts and Mortgages
A trust is a legal arrangement where one party, known as the trustee, holds and manages assets on behalf of another party, known as the beneficiary. Trusts can be categorized into several types, but the most common ones used in estate planning are revocable trusts and irrevocable trusts.
Revocable Trusts
A revocable trust, also known as a living trust, allows the grantor (the person creating the trust) to retain control over the trust assets during their lifetime. The grantor can alter, amend, or revoke the trust as needed. Upon the grantor’s death, the assets in the trust bypass probate and are distributed to the beneficiaries according to the trust’s terms.
Irrevocable Trusts
An irrevocable trust, once established, cannot be altered, amended, or revoked by the grantor. This type of trust provides more robust protection against creditors and estate taxes but comes with the downside of the grantor losing control over the assets placed in the trust.
Benefits of Putting a House in Trust
Placing a house in a trust offers several benefits, including:
- Avoiding Probate: Trust assets bypass the probate process, which can be lengthy and costly.
- Privacy: Unlike wills, which become public records during probate, trusts remain private.
- Estate Tax Reduction: Trusts can help minimize estate taxes, especially if structured correctly.
- Control and Flexibility: Trusts allow you to specify how and when your assets will be distributed.
- Protection from Creditors: Irrevocable trusts can protect assets from creditors and lawsuits.
Potential Pitfalls
While placing a house in a trust offers numerous benefits, there are also potential drawbacks to consider:
- Complexity and Cost: Setting up a trust can be complex and may require legal assistance, which can be expensive.
- Impact on Mortgage: Transferring a mortgaged property into a trust may trigger the due-on-sale clause in your mortgage agreement.
- Loss of Control: With irrevocable trusts, you lose control over the assets once they are transferred into the trust.
Steps to Put a House in Trust with a Mortgage Loan
If you decide to proceed with placing your mortgaged house in a trust, follow these steps:
1. Consult with an Attorney
The first step is to consult with an experienced estate planning attorney. They can help you understand the legal implications, choose the appropriate type of trust, and guide you through the process. An attorney will also ensure that the trust is set up correctly and complies with state laws.
2. Notify Your Mortgage Lender
Before transferring your house into a trust, it’s essential to notify your mortgage lender. Most mortgage agreements contain a due-on-sale clause, which allows the lender to demand full repayment of the loan if the property is transferred. However, lenders often allow transfers to a revocable trust without triggering this clause, provided the borrower continues to be responsible for the mortgage payments.
3. Create the Trust Document
Work with your attorney to draft the trust document. This document outlines the terms of the trust, including the trustee, beneficiaries, and how the assets will be managed and distributed. Ensure that the trust document specifically mentions the property being transferred.
4. Execute a Deed Transfer
To transfer your house into the trust, you must execute a new deed transferring ownership from yourself (or jointly with your spouse) to the trust. The type of deed used (e.g., quitclaim deed, warranty deed) may vary based on your state’s requirements and your specific circumstances.
5. Record the Deed
After executing the deed transfer, the next step is to record it with the county recorder’s office or the appropriate local government agency. This step is crucial to ensure that the transfer is legally recognized and that the public records reflect the trust’s ownership of the property.
6. Update Homeowner’s Insurance
Once the property is in the trust, update your homeowner’s insurance policy to reflect the new ownership. This ensures that the trust is protected in case of damage or loss to the property.
7. Continue Making Mortgage Payments
Even though the property is now in a trust, you must continue making mortgage payments as usual. Ensure that the trust has sufficient funds to cover these payments or that you maintain your personal responsibility for the loan.
Key Considerations on Home Loans and Trusts
When placing a house with a mortgage in a trust, there are several critical considerations to keep in mind:
Due-on-Sale Clause
As mentioned earlier, the due-on-sale clause in your mortgage agreement can complicate the transfer. It’s crucial to understand your lender’s policies and get written confirmation that transferring the property to a revocable trust will not trigger this clause.
Estate Taxes
If your estate is subject to estate taxes, consult with your attorney and a tax advisor to understand how placing your property in a trust will affect your tax liability. Properly structured, a trust can help minimize estate taxes.
Medicaid Planning
For seniors concerned about long-term care costs and Medicaid eligibility, placing a house in an irrevocable trust may help protect the home from being counted as an asset for Medicaid purposes. However, this area of law is complex and requires careful planning with the assistance of an attorney.
Homestead Exemption
In some states, placing your primary residence in a trust can affect your eligibility for a homestead exemption, which reduces property taxes. Check with your attorney and local tax assessor’s office to understand the impact on your specific situation.
Alternative Options
If placing your house in a trust seems too complex or if your mortgage lender is uncooperative, consider these alternative options:
Transfer on Death Deed
A transfer on death (TOD) deed allows you to designate a beneficiary who will inherit the property upon your death without going through probate. This option is simpler and less expensive than setting up a trust but doesn’t provide the same level of control and flexibility.
Joint Ownership with Right of Survivorship
Adding a joint owner with the right of survivorship to your property deed ensures that the property will pass directly to the co-owner upon your death, bypassing probate. However, this option has its risks, including potential creditor claims against the co-owner.
Enhanced Life Estate Deed
Also known as a “Lady Bird deed,” an enhanced life estate deed allows you to retain control of the property during your lifetime while designating a beneficiary to inherit the property upon your death. This option avoids probate and provides some flexibility but is not available in all states.
FAQ on Trusts and Mortgages
Who pays the mortgage on a house in a trust?
Trustees are responsible for ensuring mortgage payments are made on time, typically using the trust’s assets. They must manage these assets wisely to maintain sufficient funds for ongoing expenses, such as mortgage payments.
Can an irrevocable trust get a mortgage?
Are there tax consequences if you move a house with a mortgage into a trust?
No, moving a mortgaged property into a trust should not trigger any transfer tax if drafted correctly. However, due to specific state laws, it is crucial to carefully consider the matter before transferring the title to avoid potential tax complications.
It is advisable for homeowners to consult with an experienced mortgage lender and a knowledgeable estate attorney. Each state has different laws, so it is essential to ensure your trust complies with the regulations of the state in which you reside.
Takeaway on Putting a House in Trust with a Mortgage
Placing a house in a trust with a mortgage involves careful planning and consideration of various legal and financial factors. By consulting with an experienced estate planning attorney, notifying your mortgage lender, and following the necessary steps, you can successfully transfer your property into a trust. Doing so can offer significant benefits, including avoiding probate, maintaining privacy, and ensuring your assets are managed and distributed according to your wishes.
However, it’s essential to weigh the potential drawbacks and explore alternative options if needed. With the right approach, you can achieve your estate planning goals and secure your family’s financial future. Smart Lending can connect you with mortgage lenders that can help you get your mortgage in a trust they way you want.
