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  • WHITELAW

Trusts can be probated. Common example.

People who form living trusts for the sole purpose of avoiding probate are often sadly surprised. Here is just one example:


The Settlor lived in Washington and owned property in Nevada. He did up a living trust and provided in Schedule A that the Nevada property was in the trust. However, he did not record a deed in Nevada from himself to his living trust before he died.


The successor Trustee went to the Washington probate court and got an order that put the Nevada property into his trust. He then tried to record that order in Nevada public records, but recordation was refused on the grounds that a Washington Court cannot change title to Nevada property. Had recordation occurred, the title company would likely have excepted.


So, what to do. The property owner is deceased, leaving property in his name in Nevada, but no probate has been opened anywhere. Probate is supposed to be in the domiciliary state, being Washington. But there is no property in Washington. So start a probate in Washington to establish validity of the Settlor’s Will, etc, which probate order could then form the basis of an ancillary probate in Nevada?


Or, submit the trust to the Nevada probate court, along with a copy of the Washington Court’s existing order and ask the Nevada probate Court to approve and adopt the order of the Washington court?


I would probably chose whichever option appeared faster and cheaper, probably the option to have the trust probated in Nevada.

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