assignment property records

Assignment of Deed

Table of contents, assignment of deed of trust.

An assignment of deed is used to show the deed of a property changing from one party to another, such as when a sale is made. It is used as the written proof to show who has rightful ownership of the property. When someone is purchasing property and decides to sell it before they have paid it off, an assignment of deed form would be used to transfer the rights and everything associated with the property over to the new owner.

When a debtor transfers real estate to a creditor, the  Assignment of Deed  is the legal document used to record this transfer. This happens when a lawsuit is filed on a property owner for a default in payment and the court’s rule in favor of the creditor; this is one example of when the deed of assignment would be put in to use. It’s used to show that the property is being transferred from the ownership of the defendant and given to the plaintiff that won the case and awarded the property.

It’s important to understand what these documents mean as they pertain to public property records as well as  personal background checks  into an individual. This could be exactly the type of information you need to help you gain a better understanding on someone or his or her history. It could also be in your own public background information if someone knows where to look for it.

Public records will always contain the history of who owns real property and the details on that property as it exchanges hands or ownership is passed. Anyone who knows how can access basic information about a deed or its assignments.

When a property owner uses an assignment of deed of trust, they are assigning ownership of the property to someone else and this is a very important document that should be kept in a safe and secure place. There are also public records kept on these types of documents and you should be able to request a copy – sometimes at a fee – should you need one.

The  Assignment of Deed  will also specify the rights the other person will receive along with the deed. As property transfers ownership like this, a recital is usually included as well which shows how many people and the identities of who has owned the property before. This allows you to see how many times the property has transferred hands over the course of its history.

Now that you know more about this particular property document, you will understand it when you use it. Whether you need it for your property or you are searching the  property records  of someone else for some reason, this information will be very beneficial to you.

We know that these types of legal matters can be confusing to the average person and that’s why we strive to make it easier to understand by giving you the basics here. Assignment of deed of trust documents do not have to confuse you anymore.

Assignment Definition

Investing Strategy , Jargon, Legal, Terminology, Title

Table of Contents

• What Is an Assignment?
• What is an Assignment in Real Estate?
• What Does it Mean to Assign a Contract in Real Estate?
• How Does a Contract Assignment Work?
• Pros and Cons of Assigning Contracts

REtipster does not provide legal advice. The information in this article can be impacted by many unique variables. Always consult with a qualified legal professional before taking action.

An assignment or assignment of contract is a way to profit from a real estate transaction without becoming the owner of the property.

The assignment method is a standard tool in a real estate wholesaler’s kit and lowers the barrier to entry for a real estate investor because it does not require the wholesaler to use much (or any) of their own money to profit from a deal.

Contract assignment is a common wholesaling strategy where the seller and the wholesaler (acting as a middleman in this case) sign an agreement giving the wholesaler the sole right to buy a property at a specified price, within a certain period of time.

The wholesaler then finds another buyer and assigns the contract to him or her. The wholesaler isn’t selling the property to the end buyer because the wholesaler never takes title to the property during the process. The wholesaler is simply selling the contract, which gives the end buyer the right to buy the property in accordance with the original purchase agreement.

In doing this, the wholesaler can earn an assignment fee for putting the deal together.

Some states require a real estate wholesaler to be a licensed real estate agent, and the assignment strategy can’t be used for HUD homes and REOs.

The process for assigning a contract follows some common steps. In summary, it looks like this:

• Find the right property.
• Get a purchase agreement signed.
• Find an end buyer.
• Assign the contract.
• Close the transaction and collect your assignment fee.

We describe each step in the process below.

1. Find the Right Property

This is where the heavy lifting happens—investors use many different marketing tactics to find leads and identify properties that work with their investing strategy. Typically, for wholesaling to work, a wholesaler needs a motivated seller who wants to unload the property as soon as possible. That sense of urgency works to the wholesaler’s advantage in negotiating a price that will attract buyers and cover their assignment fee.

RELATED: What is “Driving for Dollars” and How Does It Work?

2. Get a Purchase Agreement Signed

Once a motivated seller has agreed to sell their property at a discounted price, they will sign a purchase agreement with the wholesaler. The purchase agreement needs to contain specific, clear language that allows the wholesaler (for example, you) to assign their rights in the agreement to a third party.

Note that most standard purchase agreements do not include this language by default. If you plan to assign this contract, make sure this language is included. You can consult an attorney to cover the correct verbiage in a way that the seller understands it.

RELATED: Wholesaling Made Simple! A Comprehensive Guide to Assigning Contracts

This can’t be stressed enough: It’s extremely important for a wholesaler to communicate with their seller about their intent to assign the contract. Many sellers are not familiar with the assignment process, so if the role of the buyer is going to change along the way, the seller needs to be aware of this on or before they sign the original purchase agreement.

3. Find an End Buyer

This is the other half of a wholesaler’s job—marketing to find buyers. Once they find an end buyer, the wholesaler can assign the contract to the new party and work with the original seller and the end buyer to schedule a closing date.

4. Assign the Contract

Assigning the contract works through a simple assignment agreement. This agreement allows the end buyer to step into the wholesaler’s shoes as the buyer in the original contract.

In other words, this document “replaces” the wholesaler with the new end buyer.

Most assignment contracts include language for a nonrefundable deposit from the end buyer, which protects the wholesaler if the buyer backs out. While you can download assignment contract templates online, most experts recommend having an attorney review your contracts. The assignment wording has to be precise and comply with applicable local laws to protect you from issues down the road.

5. Close the Transaction and Collect the Assignment Fee

Finally, you will receive your assignment fee (or wholesale fee) when the end buyer closes the deal.

The assignment fee is often the difference between the original purchase price (the price that the seller agreed with the wholesaler) and the end buyer’s purchase price (the price the wholesaler agreed with the end buyer), but it can also be a percentage of it or even a flat amount.

According to UpCounsel, most contract assignments are done for about $5,000, although depending on the property and the market, it could be higher or lower.

IMPORTANT: the end buyer will see precisely how much the assignment fee is. This is because they must sign two documents that show the original price and the assignment fee: the closing statement and the assignment agreement, respectively, to close the transaction.

In many cases, if the assignment fee is a reasonable amount relative to the purchase price, most buyers won’t take any issue with the wholesaler taking their fee—after all, the wholesaler made the deal happen, and it’s compensation for their efforts. However, if the assignment fee is too big (such as the wholesaler taking $20,000 from an original purchase price of $10,000, while the end buyer buys it for $50,000), it may ruffle some feathers and lead to uncomfortable questions.

In these instances where the wholesaler has a substantially higher profit margin, a wholesaler can instead do a double closing . In a double closing, the wholesaler closes two separate deals (one with the seller and another with the buyer) on the same day, but the seller and buyer cannot see the numbers and overall profit margin the wholesaler makes between the two transactions. This makes a double closing a much safer way to conclude a transaction.

Assigning contracts is a way to lower the barrier to entry for many new real estate investors; because they don’t need to put up their own money to buy a property or assume any risk in financing a deal.

The wholesaler isn’t part of the title chain, which streamlines the process and avoids the hassle of closing two times. Compared to the double-close strategy, assignment contracts require less paperwork and are usually less costly (because there is only one closing occurring, rather than two separate transactions).

On the downside, the wholesaler has to sell the property as-is, because they don’t own it at any point and they cannot make repairs or renovations to make the property look more attractive to a potential buyer. Financing may be much more difficult for the end buyer because many mortgage lenders won’t work with assigned contracts. Purchase Agreements also have expiration dates, which means the wholesaler has a limited window of time to find an end buyer and get the deal done.

Being successful with assignment contracts usually comes down to excellent marketing, networking, and communication between all parties involved. It’s all about developing strategies to find the right properties and having a solid network of investors you can assign them to quickly.

It’s also critical to be aware of any applicable laws in the jurisdiction where the wholesaler is working and holding any licenses required for these kinds of real estate transactions.

Related terms

Double closing, wholesaling (real estate wholesaling), transactional funding.

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Understanding the Assignment of Mortgages: What You Need To Know

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A mortgage is a legally binding agreement between a home buyer and a lender that dictates a borrower's ability to pay off a loan. Every mortgage has an interest rate, a term length, and specific fees attached to it.

Written by Attorney Todd Carney .  Updated November 26, 2021

If you’re like most people who want to purchase a home, you’ll start by going to a bank or other lender to get a mortgage loan. Though you can choose your lender, after the mortgage loan is processed, your mortgage may be transferred to a different mortgage servicer . A transfer is also called an assignment of the mortgage. 

No matter what it’s called, this change of hands may also change who you’re supposed to make your house payments to and how the foreclosure process works if you default on your loan. That’s why if you’re a homeowner, it’s important to know how this process works. This article will provide an in-depth look at what an assignment of a mortgage entails and what impact it can have on homeownership.

Assignment of Mortgage – The Basics

When your original lender transfers your mortgage account and their interests in it to a new lender, that’s called an assignment of mortgage. To do this, your lender must use an assignment of mortgage document. This document ensures the loan is legally transferred to the new owner. It’s common for mortgage lenders to sell the mortgages to other lenders. Most lenders assign the mortgages they originate to other lenders or mortgage buyers.

Home Loan Documents

When you get a loan for a home or real estate, there will usually be two mortgage documents. The first is a mortgage or, less commonly, a deed of trust . The other is a promissory note. The mortgage or deed of trust will state that the mortgaged property provides the security interest for the loan. This basically means that your home is serving as collateral for the loan. It also gives the loan servicer the right to foreclose if you don’t make your monthly payments. The promissory note provides proof of the debt and your promise to pay it.

When a lender assigns your mortgage, your interests as the mortgagor are given to another mortgagee or servicer. Mortgages and deeds of trust are usually recorded in the county recorder’s office. This office also keeps a record of any transfers. When a mortgage is transferred so is the promissory note. The note will be endorsed or signed over to the loan’s new owner. In some situations, a note will be endorsed in blank, which turns it into a bearer instrument. This means whoever holds the note is the presumed owner.

Using MERS To Track Transfers

Banks have collectively established the Mortgage Electronic Registration System , Inc. (MERS), which keeps track of who owns which loans. With MERS, lenders are no longer required to do a separate assignment every time a loan is transferred. That’s because MERS keeps track of the transfers. It’s crucial for MERS to maintain a record of assignments and endorsements because these land records can tell who actually owns the debt and has a legal right to start the foreclosure process.

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Assignment of Mortgage Requirements and Effects

The assignment of mortgage needs to include the following:

The original information regarding the mortgage. Alternatively, it can include the county recorder office’s identification numbers. 

The borrower’s name.

The mortgage loan’s original amount.

The date of the mortgage and when it was recorded.

Usually, there will also need to be a legal description of the real property the mortgage secures, but this is determined by state law and differs by state.

Notice Requirements

The original lender doesn’t need to provide notice to or get permission from the homeowner prior to assigning the mortgage. But the new lender (sometimes called the assignee) has to send the homeowner some form of notice of the loan assignment. The document will typically provide a disclaimer about who the new lender is, the lender’s contact information, and information about how to make your mortgage payment. You should make sure you have this information so you can avoid foreclosure.

Mortgage Terms

When an assignment occurs your loan is transferred, but the initial terms of your mortgage will stay the same. This means you’ll have the same interest rate, overall loan amount, monthly payment, and payment due date. If there are changes or adjustments to the escrow account, the new lender must do them under the terms of the original escrow agreement. The new lender can make some changes if you request them and the lender approves. For example, you may request your new lender to provide more payment methods.

Taxes and Insurance

If you have an escrow account and your mortgage is transferred, you may be worried about making sure your property taxes and homeowners insurance get paid. Though you can always verify the information, the original loan servicer is responsible for giving your local tax authority the new loan servicer’s address for tax billing purposes. The original lender is required to do this after the assignment is recorded. The servicer will also reach out to your property insurance company for this reason.  

If you’ve received notice that your mortgage loan has been assigned, it’s a good idea to reach out to your loan servicer and verify this information. Verifying that all your mortgage information is correct, that you know who to contact if you have questions about your mortgage, and that you know how to make payments to the new servicer will help you avoid being scammed or making payments incorrectly.

Let's Summarize…

In a mortgage assignment, your original lender or servicer transfers your mortgage account to another loan servicer. When this occurs, the original mortgagee or lender’s interests go to the next lender. Even if your mortgage gets transferred or assigned, your mortgage’s terms should remain the same. Your interest rate, loan amount, monthly payment, and payment schedule shouldn’t change. 

Your original lender isn’t required to notify you or get your permission prior to assigning your mortgage. But you should receive correspondence from the new lender after the assignment. It’s important to verify any change in assignment with your original loan servicer before you make your next mortgage payment, so you don’t fall victim to a scam.

Attorney Todd Carney

Attorney Todd Carney is a writer and graduate of Harvard Law School. While in law school, Todd worked in a clinic that helped pro-bono clients file for bankruptcy. Todd also studied several aspects of how the law impacts consumers. Todd has written over 40 articles for sites such... read more about Attorney Todd Carney

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What Real Estate Documents Need to Be Recorded?

Lea Uradu, J.D. is a Maryland State Registered Tax Preparer, State Certified Notary Public, Certified VITA Tax Preparer, IRS Annual Filing Season Program Participant, and Tax Writer.

How Does Recording of Real Estate Records Work?

Just as in any transaction, keeping an official paper trail and record of any sale or change in ownership is an important part of verifying the history of a given property or purchase. Recording – the act of putting a document into official county records – is an important process that provides a traceable chain of title to a property. There are more than 100 types of documents that can be recorded, depending on the type of property and type of real estate transaction. The most common documents are related to mortgages, deeds , easements, foreclosures, estoppels, leases, licenses, and fees, among other kinds of documents.

The most important real estate documents list ownership, encumbrances, and lien priority. These are used to maintain proper real estate transactions.

Key Takeaways

• Recording is the act of putting a document into official county records, especially for real estate and property transactions, that provides a traceable chain of title.
• Recorded documents do not establish who owns a property. Rather, these public records are actually used to help resolve disputes between parties with competing claims to a property.
• To understand which documents have been or must be recorded, check with your state and county recording division.

Real Estate Recording Systems

In reality, recording systems vary by state and are established by individual state statutes. Not all states use a process of instrument recording to track title; some states use land registration systems instead. In any case, it is the responsibility of the local county or state to make sure that these official documents are kept on file.

Recorded documents do not establish who owns a property--this is instead of the function of a title that establishes the legal owner of the asset. Rather, recorded documents are made public to be used to help resolve disputes between parties with competing claims to a property. For instance, if two different claimants have conflicting deeds to a property , the date of recording can be used to determine the ownership timeline. In most cases, these public records provide clarity, and typically the owner with the most recent deed would be considered the rightful owner. If there are any issues, it would be wise to seek legal counsel.

In the case of mortgage liens , courts use the date of a recording to determine the priority for which liens should receive payment first.

To understand which documents have been or must be recorded, check with your state and county recording division. Some states have also passed recording acts, which are statutes that establish how official records are kept.

Ultimately, recordings provide information for both government authorities and for the buyers and sellers of real estate property .

Each state has its own recording system for property records and various requirements that come along with it.

Examples of Real Estate Recording Requirements

Since each state and county has its own laws on what must be recorded, there are minute variations in recording requirements on what is required. For example, for Los Angeles County , all "courier services, third-party representatives, attorney services and messengers must drop off Deeds, Deed of Trust, Leases, and Notice of Default submitted for recording."

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How to Transfer Property Using Assignment of Property

These are step-by-step instructions to help you distribute property from a decedent’s estate using a Petition and Order for Assignment. It is best to read them all the way through before starting. Keep a copy of everything you file for your records.

Step 1: Prepare your forms and find out how you will file

Complete the forms using our Do-It-Yourself Settling a Small Estate  tool. These instructions explain how many copies you need of each form and when you will need them.

Date and sign the Petition for Assignment. When you do this you are saying the information in the petition is true.

Some of the steps later in these instructions may have slightly different information for you depending on how you will file with the court. Each court decides how it will accept documents for filing. Contact your court to find out which methods are available. Depending on your court, you may be able to file by:

• In-person filing
• E-filing using MiFILE
• Mailing or dropping off documents

You can find contact information for your court on the Courts & Agencies page of Michigan Legal Help.

MiFILE is only available for some courts. Even in courts where it is available you can only use it for some case types. The State Court Administrative Office has a chart of courts that use e-Filing . To learn more, read What Is E-Filing? .

Step 2: If your court requires the form, sign the Testimony to Identify Heirs in front of a notary or deputy register

Not all courts require the Testimony to Identify Heirs form. If the court where you are filing your petition does not require this form, you do not need to sign it.

If your court requires this form, sign it in front of a notary  or a deputy register at the probate court. There are notaries at many banks or credit unions. If you need more expanded hours many copy and print shops also have notaries available. Whatever option you choose, call first to make sure someone will be there when you go. Most notaries charge a small fee. You will need to show the notary or deputy register a photo ID, such as a driver’s license or state ID card.

Step 3: Make copies

After you sign your documents, make copies as follows:

• Petition for Assignment– 2 copies
• Protected Personal Identifying Information form– 2 copies
• Order for Assignment (Part 1)– 2 copies
• Order for Assignment (Part 2)– 2 copies
• Testimony to Identify Heirs, if the court where you’re filing requires it– 2 copies
• The death certificate–1 copy
• Proof of payment for funeral or burial expenses, or a bill showing the amount owed– 1 copy

If you are filing either by e-mail or using MiFILE, you will not need to make copies.

Step 4: File your forms and pay the filing fees

Contact your court to find out which filing methods are available. Depending on your court, you may be able to file electronically. To learn more about filing methods that may be available, read Step 1. If you are e-filing using MiFILE, you will need to know the case-type code. The case type code for a Petition for Assignment is PE.

File the following documents with the probate court in the county where the decedent lived or owned property when they died, and keep one copy for your records:

• Two copies of the Petition for Assignment, Protected Personal Identifying Information form, Order for Assignment (Part 1), and Order for Assignment (Part 2)
• Two copies of the Testimony to Identify Heirs if the probate court where you’re filing requires it
• A copy of the death certificate
• Proof that the funeral and burial expenses have been paid or a bill showing the amount owed

You must pay a $25 filing fee when you file your petition. You must also pay an inventory fee and a fee to get a certified copy of the Order Assigning Assets. The inventory fee is based on the value of property in the estate. If the property in the estate has no value, the inventory fee is $5. Use the Inventory Fee Calculator to find out how much the inventory fee will be.

Contact your court to find out which filing methods are available. Depending on your court, you may be able to file electronically. To learn more about filing methods that may be available, read Step 1.

After your petition is filed, a judge will review it and sign it (if it is approved). This could happen the same day you file it, or you may have to return to the court to pick it up another day. You will need a certified copy of the order to transfer the property in the estate. The fee to get a certified copy varies, but it is usually $15 to $20.  You may want to get more than one certified copy, depending on how much property needs to be distributed.

Step 5: Decide how the property will be divided

The Do-It-Yourself Settling a Small Estate  tool will tell you the shares each person is entitled to, but some things (like cars) cannot easily be divided. Decide how to divide the existing property so everyone gets the share they deserve.

Step 6: Transfer personal property

You need the certified copy of the Order Assigning Assets to transfer the property in the estate. You might need it to show to people who have personal property the decedent owned, like a bank or the decedent’s landlord .

If a decedent had a bank account, take a certified copy of order along with a copy of the death certificate to the decedent’s bank. The bank should give you the money in the account. If the order says more than one person is entitled to part of the account, it might be distributed as checks to each person entitled to a share.

If the decedent had property in an apartment or rented home, show the landlord a certified copy of the order to collect the decedent’s personal property.

Step 7: Transfer real estate (if needed)

Record a certified copy of the Order Assigning Assets with the register of deeds for the county where the property is located. Check the county’s website or call the local register of deeds office to find out the recording fee.

If the person getting the property will be living there, they must fill out a Principal Residence Exemption Affidavit  and file it with the city or township where the property is located within 90 days after the decedent’s death.

If the decedent lived in the property and the person getting the property is not going to live there but plans to continue owning it, they need to fill out a Request to Rescind a Principal Residence Exemption  and file it with the city or township where the property is located within 90 days after the decedent’s death.

The Principal Residence Exemption forms do not have to be filed for three years if the property is for sale.

Step 8: Transfer any vehicles (if needed)

The person inheriting the vehicle must sign the Certification from the Heir to a Vehicle, which was prepared by the Do-It-Yourself Settling a Small Estate  tool. Take it to the Secretary of State’s (SOS) office with a copy of the death certificate. If you have a copy of the vehicle title, take that, too.

If there is no surviving spouse, more than one heir may each have an equal right to the car. Those who will not be getting the title in their names may complete and sign a Certification statement of their own to state they give up that right.

If the car is transferred to someone who is not the spouse or an heir, the person who gets it will have to pay use tax. The use tax is paid at the SOS office when the title is transferred.

Step 9: Collect any money due from the decedent’s employer

If the decedent’s employer hasn’t paid all wages and benefits due to the decedent, show the employer a certified copy of the order to collect that money.

Timeline to Re-Open Assessment, Collection Offices

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• Wills & Trusts
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Answers to Frequently Asked Questions

What is a will.

A Will is a document where you indicate how you want your property distributed at your death. In a Will you designate who your beneficiaries and Personal Representative (a.k.a., Executor) will be. If you have not designated a person to serve as your Personal Representative in a Will, the Probate Court will designate a person to act as the Personal Representative with the authority to administer your probate estate.

For your convenience click HERE to view the California Statutory Will Form that is provided by the State Bar of California. Should you choose to use this form, please be careful to have the Will properly signed by two witnesses who are over the age of 18 and are not related to you.

Caution – A WILL DOES NOT AVOID PROBATE!

What is a Trust?

There are many different types of Trusts, but their common feature is that they all indicate how you want the trust assets managed and distributed to the beneficiaries.

The most popular type of Trust is called a Revocable Living Trust. As indicated in the name, a Revocable Living Trust can be changed or revoked entirely. It is called a "Living" Trust because it is created while you are alive. When the Trust is created, you are both the "Grantor" and the "Trustee." You're the one who transferred the assets into the Trust, and you're in control of your property. You will also designate "Successor Trustees" to be in charge of your assets when you are incapacitated and after you pass away.

One of the benefits of having a Trust versus a Will is that assets in a Trust do not go through Probate . This is because ownership of your property is transferred into the Trust, and you tell the Successor Trustee how to manage and distribute the assets. A court does not supervise the administration of the Trust. The only time your Successor Trustee should need to go to court is if there is ambiguity in the Trust document or if your beneficiaries contest the terms of the Trust.

What is Probate?

Probate is the court-supervised process of wrapping up one's affairs following their death. During this process, assets are inventoried and appraised, creditors are notified of the death, assets may need to be liquidated, debts are paid, and after attorney's fees and court costs are paid, any remaining assets are distributed to the beneficiaries. Because this is a court-supervised process paperwork must be filed with the court, affected parties must be served, and appearances are made before a judge. Unless sealed, all documents filed with the court are public information.

How much does Probate cost?

California lawmakers have imposed a minimum statutory fee that can be charged by attorneys in Probate cases. The fee schedule can be found at California Probate Code Section 10810. It is important to note that these fees are imposed on the GROSS value of the assets rather than the NET value. Therefore, encumbrances (debt) on the property are not taken into consideration when calculating the attorney's fees. Additionally, this schedule does not take into account the Personal Representative's (aka Executor) fees or additional compensation for extraordinary services that the Probate Court may choose to award.

What are the differences between a Will and a Trust?

Although both are instruments where you indicate how you want your property distributed, assets held in a Trust are not subject to Probate. If you only have a Will, then your remaining property will go through the probate process, and your Will becomes public record. Conversely, a Trust is a private document; since it is not recorded with the court, it can't be viewed by the public or by snooping family members.

Do I need a Trust?

This is another commonly asked question and the typical (and accurate) response is “it depends.” More completely, the answer depends on how expensive and complicated the Probate process will be after you pass away, and whether or not you want to prevent your family from dealing with the stress that's involved.

Without a Trust your assets may be subject to Probate before being distributed to your spouse or heirs. Probate can be a time consuming and frustrating process that can take from 9 months to several years and often requires the expertise of an attorney.

If you have few assets and you don't own a home, then the Probate process should be relatively straight forward and inexpensive. However, if you own a home or you have property valued in excess of $150,000 then you should have a Trust. California lawmakers have imposed a minimum statutory fee that can be charged by attorneys in Probate cases. The fee schedule can be found at California Probate Code Section 10810 and is illustrated in the table below.

As you can see, these statutory fees are owed to attorneys on a sliding scale based upon the value of the decedent’s assets. It is important to note that encumbrances (debt) on the property are not taken into consideration when calculating the attorney’s fees. Additionally, this schedule does not take into account the Personal Representative’s (aka Executor) fees or additional compensation for extraordinary services that the Probate Court may choose to award.

With a Trust your assets will be managed by your Trustee and distributed to your beneficiaries pursuant to your instructions. You determine who your Trustee and successor Trustees will be and the order of succession. You can easily change your Trustees by preparing an Amendment to your Trust. Your Trustee may be entitled to a fee but you decide how much the fee will be. In addition to freeing your loved ones of the expenses and burdens of Probate, you obtain the benefit of privacy by preventing your affairs from becoming public record in the Probate Court files. Finally, in almost all cases, the cost to prepare a revocable living trust is much less than the expenses of Probate.

Are there any income tax advantages of having a Trust?

A Revocable Living Trust is tax neutral and does not generate any tax advantages or consequences as long as the person who put the assets into the trust (commonly referred to as the Grantor, Trustor, or Settlor) is the primary beneficiary of the trust and retains the right to amend the trust. Satisfying these requirements makes the Trust a Grantor Trust for tax purposes, and all income and losses are reported on the Grantor's personal tax returns. However, once the Grantor passes away, the trust must obtain its own EIN, and it must file its own federal and state income tax returns. The federal income tax return for trusts is filed on Form 1041, and the California income tax return for trusts is Form 541.

Does a Trust provide asset protection from creditors?

A Revocable Living Trust does not provide asset protection from the creditors of the Grantor(s). There are other types of Trusts that can do this. However, a Revocable Living Trust can protect assets from the claims of your beneficiaries' creditors.

Doesn’t holding real property in “joint tenancy” avoid Probate?

Yes, but Probate is only avoided on the death of the first spouse. When the second spouse dies, the real property must go through Probate. If the house were placed into a trust while both spouses were alive, there would be no need for a Probate to be opened at either death. Additionally, there are negative capital gains tax consequences should the surviving spouse choose to sell the house, and it is held in joint tenancy.

Should I give my house to my children before I die in order to avoid Probate?

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Feel free to call us if you have additional questions. (949) 639-9606

NO! Many people think that this is an easy solution to avoid forming a Trust. However, it is ripe with problems. 1) GIFT TAX - The gift to your children is a taxable event, and you must file a Form 709 Gift Tax Return. Any tax penalty associated with the transfer is owed by the transferor, not the recipient of the property. 2) CAPITAL GAINS TAX - Your children's tax basis in the property would be your basis in the property. This can have horrible consequences should your children eventually choose to sell the property. However, if they were to inherit the property upon your death, their basis in the property would be the fair market value at the time of your death. This could eliminate any capital gains taxes owed when they choose to sell the property. 3) CREDITORS - Placing your children on title to your house will make it accessible to the claims of your children's creditors. The tax consequences and potential risks generated by giving your house to your children substantially outweigh the expense of a properly prepared Trust. Click HERE for more information concerning joint ownership of property between generations.

I have a trust that was drafted ten years ago or more. Do I need a new one?

Most likely, yes. Due to the changes in tax laws that have occurred over the past ten years, it is very likely that your trust is outdated and doesn’t properly take these changes into account. For example, in 1999, the per person estate tax exclusion amount was $650,000. Today this amount is $5,450,000. Your estate plan was likely drafted based upon the size of your estate and the estate tax exclusion amount at that time.

Because the estate tax exclusion amount has changed significantly over time, and because married people can now take advantage of the "Portability" of the deceased spouse's unused estate tax exclusion amount, your trust likely needs to be updated.

We would be happy to review your existing estate plan documents and provide you with our opinion on the status of your existing estate plan.

I recently moved from another state. Can I still use my old Trust?

No. Probate and Trust laws vary significantly between states. Although your Trust may have a clause saying that the trust can use the governing laws of the state where you currently live, this can cause confusion in the Trust provisions. The most prudent thing to do is to consider it a moving expense and have the Trust redrafted under California law.

Why do I need to hire a lawyer if I can prepare my Trust online?

An estate planning attorney is aware of the current tax laws and potential changes in these laws. Every person’s situation is unique, and their estate plan should be drafted to account for the changing tax laws. Therefore, we do not believe in taking a one-size-fits-all approach to estate planning. Rather every Trust is custom drafted for our clients to accommodate their specific needs and desires. Additionally, having an estate planning attorney prepare your Trust will provide a continuity of advice and someone for spouses and beneficiaries to turn to for guidance during the time of grief and turmoil following the death of a loved one.

I’m not married. Why should I have a Trust?

How do you want to be remembered when you pass away? Someone will need to take care of your final affairs. Do you want to force your friends, family, or other loved ones to appear in court to resolve your affairs? Show your loved ones you care about them by having a well organized and up-to-date estate plan.

What documents are included in an estate plan?

People typically people think of Wills and Trusts in conjunction with estate planning. However, these are merely two components of a complete and cohesive estate plan. A properly prepared estate plan should include at least the following documents:

• Revocable Living Trust
• Certification of Trust
• Trust Summary
• Trust Funding Instructions
• Pour-Over Will
• Durable Power of Attorney
• Assignment of Personal Property
• Personal Property Memorandum
• Health Care Power of Attorney
• Advance Health Care Directive ( Click HERE )
• HIPAA Authorization
• Property Agreement (for spouses only)
• Deeds transferring real property into the Trust
• Remembrance and Services Memorandum ( Click HERE )

What is a Pour-Over Will?

A Will tells the Probate court how to distribute your assets upon your death. Whereas a "Pour-Over Will” pours any of the assets that were not placed in your Trust during your lifetime into the Trust upon your death to be administered and ultimately disposed of pursuant to the provisions of your Trust. A Pour-Over Will is basically a clean-up mechanism, not a substitute for transferring assets into your Trust during your lifetime, and any assets that are transferred to your Trust under your Pour-Over Will will likely be subject to Probate. REMINDER: WILLS DO NOT AVOID PROBATE. A PROPERLY FUNDED TRUST AVOIDS PROBATE.

What is a Certification of Trust?

When dealing with assets held in your Trust, third parties often want evidence that you are the Trustee and have the power to enter into the transaction at issue (e.g., selling real estate, opening a brokerage account, etc.). In such a case, providing the person with a copy of the Certification of Trust rather than the full Trust Agreement provides them with the information they need, and keeps private the information with respect to the Trust’s beneficiaries and the disposition of the assets in your Trust upon your death.

What is a General Durable Power of Attorney?

A General Durable Power of Attorney authorizes the person designated as your "Agent" to act on your behalf with respect to your financial affairs. The version of this document we prepare is sometimes called a “Springing” Power of Attorney. This is because your Agent is not immediately given the power to manage your financial affairs upon you signing this document. Rather, the power “springs” into effect upon your incapacity. California has instituted the Uniform Statutory Form Power of Attorney Act under California Probate Code Sections 4400 - 4465, which provides the public with a form that they can use to give another person the authority to make financial decisions on their behalf. Click HERE to view the California Statutory Power of Attorney Form. If you choose to use this form, please read it thoroughly and do not sign it if you are under duress to do so, or if you do not fully understand the financial authority being conveyed under this document. Also, this form needs to be notarized or signed by two disinterested witnesses. We do not use this form at Winstead Law Group, APC. Instead, we prefer to use Powers of Attorney that are specifically drafted for each client's unique needs.

What is a Health Care Power of Attorney?

A Health Care Power of Attorney allows you to designate those individuals who will make health care decisions for you upon your incapacity. These people are referred to as “Health Care Agents.”

What is an Advance Health Care Directive?

An Advance Health Care Directive (also commonly referred to as a “Living Will”, “Physician’s Directive”, or a “Directive to Physicians”) is where you convey to your Health Care Agent and health care personnel your desires concerning life sustaining treatment and anatomical gifts. Click HERE to view the California Statutory Advance Health Care Directive Form.

It is important to note that no amount of legal documentation and preparation can guarantee that your health care wishes are followed. This is a very sensitive topic where strong emotions are involved. Therefore the best advice we can provide is for you to ensure that your Health Care Agents know what your wishes are and that they are willing to follow your instructions despite any personal feelings they may have to the contrary.

What is a HIPAA Authorization?

“HIPAA” stands for Health Insurance Portability and Accountability Act. A HIPAA Authorization provides the Health Care Agent named in your Health Care Power of Attorney with access to your medical information. Hospitals generally will not release your medical information to anyone, including a spouse or close family member, unless they are provided with a HIPAA Authorization. You may choose to provide executed copies of the Health Care Powers of Attorney, Advance Health Care Directives, and HIPAA Authorizations to your health care providers for their information and to retain in your medical records.

What is an Assignment of Personal Property?

An assignment of Personal Property is a document that is used to transfer all of your tangible personal property into your Trust. However, the Assignment is not effective at transferring title to assets that have their own evidence of ownership, such as real estate, bank accounts, vessels, and automobiles, which need to be individually transferred to your Trust.

What is a Property Agreement?

A Property Agreement only applies to married people. The Property Agreement is designed to clarify the manner in which your assets are held, whether Community Property or Separate Property. There are tax advantages to holding property as Community Property. A Property Agreement IS NOT a substitute for a Post-Nuptial Agreement.

What is a Personal Property Memorandum?

A Personal Property Memorandum is a form that can be incorporated by reference into your Will and Trust and is used to indicate how you would like your personal effects (e.g., clothing, mementos, jewelry, furniture, art, etc.) to be distributed on your death. These forms provide flexibility to your estate plan. If you change your mind about distribution, you can either prepare a new Personal Property Memorandum or amend the existing one by striking through to the name of the beneficiary and the intended gift, and initialing and dating the strike-through. The use of these forms avoids the need to prepare a formal amendment to your Trust if you have a change of heart as to the disposition of your personal effects. To avoid confusion and potential litigation, please inform your spouse of your desires to distribute certain tangible items to individuals and provide a copy of your Personal Property Memoranda to your attorney.

How do I designate a legal guardian for my children?

Parents should prepare Wills and Powers of Attorney designating the Guardian of their children upon their death or incapacity. Although a judge will still need to sign off on the appointment, most courts will respect the parents’ wishes. In support of their decision, parents should also write a letter that explains their reasons for designating the particular person as their children’s Guardian. Click HERE to learn more about Child Guardianship Planning.

Can I exclude a person as the legal guardian of my minor child?

Yes, you can specifically exclude people as your child's legal guardian. However, please keep in mind that the Guardian must still be approved by a judge, and they likely won't consent to the exclusion of a child's parent without good cause. Ultimately, the judge's primary concern is whatever is in the best interests of the child.

Why should I choose to work with Winstead Law Group, APC?

We are a boutique tax, asset protection, and estate planning firm. We offer clients the expertise found at larger firms and the personalized attention that is rarely found at any law firm. Each of our clients is important to us, as is educating them with their legal matters. Our commitment to educating our clients means that each and every client is provided with individualized attention. Because we spend a lot of time with our clients, this added time is reflected in the cost of our services. However, we feel this time is well worth the expense, and our clients agree. Read our client reviews to hear what they have to say.

What can I expect if I choose Winstead Law Group, APC, to prepare my estate plan?

Our commitment to educating our clients means that each and every client is provided with individualized attention over several meetings designed to:

• 1 Introduce clients to the Estate Plan concept, helping them understand why they may, or may not, need an Estate Plan;
• 2 Obtain information needed to prepare a complete and cohesive Estate Plan designed to meet the client’s specific needs, objectives, and concerns;
• 3 Educate clients with the provisions contained in their documents by reviewing the draft version of the Estate plan documents with clients prior to the documents being signed and notarized;
• 4 Impress on clients the need to transfer assets into their Trust because an improperly funded Trust does not accomplish one of its primary goals – Probate Avoidance; and
• 5 Assist in funding their trust through advice, discussions with bankers and financial advisors, and ensuring that Deeds are prepared to transfer title to real property into the Trust.

Click HERE to view a diagram illustrating the typical estate planning process.

What is the cost of an estate plan?

No one likes to be billed hourly for legal services. Therefore, whenever possible, we set a flat rate fee prior to beginning legal representation. However, we do not think it is fair to work from a Fee Sheet. As each estate plan is unique, it is difficult to quote a price until sufficient information is obtained to understand the scope of services involved. Generally, estate plans for individuals fall in the $2,500 to $3,000 range, and estate plans for married persons cost around $3,500 to $4,000. Please understand that these prices directly reflect the complexity of the plan and the amount of time involved, not only in drafting the documents, but also in meetings, teleconferences, and recording Deeds with the County Recorder.

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Latah County, Idaho

The County Assessor maintains a current record of ownership of all property within Latah County, prepares a map or Assessor’s Plat Record of all real property within the county, and assesses the market value of all property in the county. The Assessor must notify each property owner of the assessed value of their property on an annual Assessment Notice .

The Assessor submits annual property rolls and abstracts with all of the county’s assessment data to the County Auditor and the State Tax Commission. These reports include the overall taxable value of all property located within the boundaries of local taxing districts. This total taxable value is part of the calculation used by local taxing districts to set their annual property tax levies.

The property tax levy is the rate at which all property will be taxed in order to collect the amount of property taxes approved in that year’s budget. The assessed value of each property determines that property owner’s share of the annual property taxes to be collected.

The Assessor’s Office also administers homeowner exemption applications, as well as the state Property Tax Reduction Program (also known as “Circuit Breaker”) for qualifying senior citizens or disabled homeowners.

In Idaho, the licensing and titling of vehicles and vessels performed at DMVs also falls under the responsibility of the County Assessor.

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