As a Georgia estate planning attorney, I’m often asked about putting homes into trusts. Creating a revocable living trust for your home is one of the most effective strategies to avoid probate in Georgia. This simple legal arrangement ensures your property transfers smoothly to your loved ones without court intervention, saving them time, money, and stress during an already difficult period. Let me walk you through how this works and why it might be right for your situation.

6 Reasons To Put My House in a Trust

1. Putting your house in a trust is to avoid probate. 

Probate is a court-supervised legal process that inventories, values, and distributes your assets after death, which can be time-consuming, costly, and stressful for your loved ones during an already difficult period. The ability to exempt your house from the process can be a real benefit. 

Probate can vastly slow down your beneficiaries’ ability to utilize or sell the property. Since for many their home is the major part of their estate, inability to access this asset can be a serious negative for your family. You will have added fees generated by the need to pay for drafting a deed to transfer the property.

Learn more about the process of probate.

2. Your beneficiaries avoid capital gains taxes.

Often older people want to give their property to their children while they are still living so they can move on to enjoy their retirement. In theory, this seems to make sense. Your children have families of their own and need a larger home, whereas your house is now too big for you, and ties you down to more responsibility than you want to deal with.

However, if you gift your property to your children during your lifetime, they do not receive a step up in basis.  This means that should they need to sell the property, there could potentially be a large capital gains tax that benefits no one, not to mention the need to file a gift tax return.

If, however, you place your property in a trust, your children can still enjoy the larger home and you can go off and enjoy your later years, but the title to the property does not transfer until your death, and your children receive a step up in basis and avoid a potentially huge tax bill.

3. You can put multiple properties in the same trust. 

If you own more than one home or other real estate, you do not need to have a separate trust drawn up for each property. Multiple properties, and other assets as well, can be placed in a single trust and be handled by the same trustee.

4. Trusts keep your estate private compared to the public probate process.

Probate is a public process. Your estate and its value are available for all to see. Trusts are private and will not be available for the public to scrutinize.

5. Protect your assets.

Placing your home in certain types of trusts can provide asset protection benefits for different situations. For business owners concerned about lawsuit protection, as well as individuals looking to qualify for Medicaid assistance, trust planning offers strategic advantages. However, asset protection in Georgia requires careful planning, as not all trusts provide the same protections. If asset protection is among your goals, consult with an experienced estate planning attorney to determine which trust structure best suits your specific circumstances.

Learn more about the different types of trusts here.

6. Flexibility to update revocable trusts.

If you have a revocable living trust, you can add or remove assets from the trust as long as you are in control of it. You can sell your home and buy another, or place newly acquired properties into the trust. You can even dissolve the trust altogether. (Of course, if you do, you will lose the benefits the trust offered you.) A revocable living trust becomes irrevocable when you die, so the terms cannot be changed by anyone after your death. A will is much less flexible to change and often would require a complete re-write or a codicil should a change be needed.

4 Disadvantages of Putting My House in a Trust

1. Cost.

The costs involved with creating a trust, and the continued cost of maintaining that trust, are usually significantly higher than just drawing up a Will. In addition, depending on the makeup of your estate, you will likely also want to have a Will created to deal with other aspects of your estate, so you will have that cost as well. This is especially true if you have minor children (or pets) to consider. You will need to provide for the continued care and support of your charges, and that is normally handled in your Will.

2. Trusts are extra work on the front end. 

Getting things set up and transferred takes more work and expense on the front end rather than leaving it to other people to do the work after you die.

3. Other assets might still go through probate.

Although assets placed in trust avoid the probate process, anything that was not transferred to the trust may still need to go through probate. It is important to make sure the transfers are done correctly to avoid having assets that must go through the probate process.

Common Questions About Putting a House in a Trust

Can you put a house with a mortgage into a trust?

Yes, you can transfer your mortgaged home into a revocable living trust without triggering the Due on Sale clause, as long as it’s a residential property with one to four dwelling units.

Under the Garn-St. Germain Act, homeowners are specifically protected when transferring their primary residence into their own revocable living trust. This means you can place your mortgaged home in a trust where you remain the trustee and beneficiary without requiring permission from your mortgage lender.

This protection only applies to residential properties with one to four units. If you’re dealing with a commercial property or a residential property with more than four units, you’ll need to obtain permission from your mortgage holder before making the transfer.

The good news is that for most homeowners looking to include their primary residence in their estate plan, this transfer can be done smoothly as part of creating a comprehensive trust. If you have any questions about your specific situation, we would love to help guide you.

Can I sell a home that’s in a trust?

Yes, you can absolutely sell a home that’s held in a trust, and the process is quite straightforward.

If you’ve placed your home in a revocable living trust (which is what most people do for estate planning purposes), selling the property is similar to selling a home you own personally. As the trustee of your own trust, you have the legal authority to sell the property by signing the sale documents as “(Your Name), Trustee of the (Your Name) Revocable Living Trust.”

The title company and real estate professionals involved in the transaction will simply need to verify your authority as trustee, usually by requesting a copy of your trust certificate or memorandum. This is a routine part of real estate transactions involving trusts.

Even if you’ve appointed someone else as trustee, that person can facilitate the sale on your behalf, provided it aligns with the terms of the trust and your wishes as the beneficiary.

Placing your home in a trust offers excellent estate planning benefits without restricting your ability to sell the property when you want. The additional paperwork is minimal, and it won’t complicate the sales process in any significant way.

If you have specific questions about selling a property from your trust, we’d be happy to help guide you through the process.

How to Put Your House in a Trust 

Transferring your home into a trust is a straightforward legal process that provides valuable estate planning benefits. Here’s what you need to know about putting your house in a trust:

• First, you must establish a proper trust document that names you as the grantor, designates trustees (often yourself), and identifies beneficiaries
• Next, create a deed transferring the property from your name to “your name as trustee of your trust” – this specific wording is important in Georgia
• File the deed with the Superior Court in the county where your property is located, along with a PT-61 tax transfer document
• If you have a mortgage, using a revocable grantor trust where you are the grantor, trustee, and initial beneficiary will prevent the lender from calling the loan due under federal law

For a more detailed explanation of this process, including important considerations about trust types and mortgage implications, read our full article on putting your house in a trust.

Should I put my house in a trust?

Wondering if you should put your house in a trust? As an estate planning attorney, I could simply say “it depends” and leave it at that—but there are several compelling reasons to consider this option, with relatively few drawbacks.

Benefits of Putting Your House in a Trust

• Probate Avoidance: Transferring your home to a trust allows your heirs to skip the probate process, which can be time-consuming, costly, and frustrating.
• Enhanced Privacy: Unlike probate, which creates public records, a trust keeps your property transfers and estate details private.
• Seamless Control Transfer: If you become unable to manage your affairs, your successor trustee can immediately step in to handle your property without court intervention.
• Immediate Distribution: After your passing, your trustee can transfer the property to beneficiaries without waiting for probate court approval.

Potential Drawbacks

• Initial Setup and Maintenance: Creating a trust requires some upfront effort and minimal ongoing maintenance to ensure it remains effective.
• Learning Curve: You’ll need to understand the basics of how your trust works, though this is typically straightforward.

The good news is that if you establish a revocable living trust where you serve as both trustee and beneficiary, you’ll maintain essentially the same control over your property as you currently have. You can sell it, refinance it, or make other changes with minimal additional paperwork.

So, should you put your house in a trust? For most homeowners who want to ensure a smooth transfer of their property and avoid probate, the answer is yes. However, everyone’s situation is unique, and consulting with an estate planning attorney about your specific circumstances is always recommended.

Getting Started with Putting Your House in a Trust

The bottom line is, your decision to choose a trust as part of your estate planning depends on your goals. The details can be complex and your best plan is to work with an expert estate planning professional like those at Siedentopf Law.

Call Siedentopf Law today, or set up an appointment online to begin or review your estate plan!