Titling Real Property – Frequently Asked Questions

1. How should I title real estate that I acquire in the future? 

In your Funding Instructions, we have recommended language for how your assets should be retitled when titling real property. Title to your Trust may be expressed as provided in the following example: John Doe, Trustee under the John Doe Trust, dated “Your Trust Date.”

Note: if you married and the property is located in the state of NC, DE, VA, or MD, we recommend that you purchase the property first in both of your names as “Tenants by the Entirety” then later retitle it to your Trust after the first deed is recorded. If a married couple owns the property as tenancy by the entirety, creditors of an individual spouse may not attach and sell the debtor spouse’s interest in the property. This limited creditor protection remains when the property is transferred to the trust.

If you have moved residence out of VA, MD, or DC, we recommend that you consult with an estate planning attorney in that jurisdiction to make sure all your estate planning documents are valid in that state. The attorney may also be able to retitle the new property to your Trust.

If you have moved within VA, MD, or DC, we are able to prepare deeds for these jurisdictions. Before commencing any work, we will quote you a fee for the preparation of the deed and any government recording costs. Once we receive your approval, we will prepare a deed retitling the property to your Trust. We will also prepare any necessary transfer forms and record them along with the deed. The timeline for the retitling process varies based on the location of the property.

2. I’m closing on a house that is in my Trust, what does my settlement company need? 

Be prepared to provide the settlement company with a copy of your trust agreement. The title company will be issuing and title insurance policy to the buyer and the buyer’s mortgage company. They want to make sure that the trust agreement is valid and gives you the power to sell real estate.

3. What should I do with my homeowner’s policy? 

Please notify your homeowners’ insurance company regarding the transfer of your real estate to your Trust. We recommend you list your Trust as an additional insured under your homeowner’s policy.

4. What about title insurance?

If you purchased owners title insurance when you acquired your real estate, please review the policy to determine if the definition of insured (those covered by the policy) includes a Trust to which you transfer the property. If it does not, you can contact the title insurance company to update the insurance policy.

5. Should I transfer my mortgage or home equity line of credit to my Trust? 

Your mortgage and any home equity loan on your real estate is owned by the lender, and so you do not transfer it to your Trust when titling real property. The lien that the lender has to ensure repayment of the loan follows the property into the trust.

6. Will I lose the capital gains exemption on my home if I transfer it to my Trust? 

No. This exemption will still be available to you.

7. If I put my home in my Trust, can I still deduct the mortgage interest? 

Yes, you can.

8. If I place my home in my Trust, will it affect my mortgage? Can the mortgage company “call” my mortgage? 

No. Transferring your home into your Trust will not affect your mortgage because you have not given away a beneficial interest in the property. However, if you are transferring commercial property to your Trust such as an office building, multi-unit apartment, office condo, you must obtain the lender’s permission to transfer the property to your Trust.

9. Can I transfer assets back out of my Trust? 

Yes. Your trust is revocable. You may spend your assets, give assets away, and transfer assets back into your name without restriction. However, after a Trustor dies, depending on your type of Trust, this power may change.

10. I am refinancing my mortgage, and my refinancing company is asking for information regarding the Trust, what do I do?

Mortgage lenders react differently when dealing with properties when titling real property in a trust. Let the lender know at the beginning of the process that the property being refinanced is in a trust. It is possible that you will be required to deed the property out of the trust. Keep in mind that you should be able to transfer the property back to the trust after the refinance is completed.