Have not been able to get a return call from my favorite probate matters attorney, so I am asking for a professional opinion here.

The daughter of my deceased client recorded her mother's grant deed granting the real estate to the living trust after her mother passed away. The daughter is the successor trustee.

Does this invalidate the deed to the living trust, and if so, does it now mean that the real estate must be probated instead?

I searched a couple of living trust sites on line but could not find an answer in their FAQ sections.

I believe you have a potential problem since the deed was not recorded until after the grantor's death.

It could be compounded by the fact that the daughter is not only the successor trustee but likely an heir as well.

I hope the lady had a valid will and yes, the estate will probably have to now go through the probate process.

Thanks Jim. I can always depend on you for a great response. I doubt there is a will, since the deceased had a living will prepared by an attorney, as required, to avoid the probate process, but the grant deed was never recorded to put the properties in the living trust. At this point the attorney who prepared the living trust is not returning the daughter's phone calls since she is trying to find out if there is negligence and how it occurred.

While waiting to hear back from your estate planning attorney, you could visit a title company. They often review the legal status of title to determine whether title is insurable. They will not give you "legal advice" as in being your legal counselor, but I bet their assessment of the legal status of the title you are inquring about is accurate.

Thanks, Jerry for that suggestion. I did just that and my favorite Title Rep contacted his Legal Dept and I received a response to this dilemma that it could possibly be solved in one of two ways. Firstly, that the successor trustee must contact the attorney who prepared the living trust and request that the attorney file a Petition for Order Determining The Existence of Trust to Real Property (not the exact wording). This Petition falls under the Probate Codes. In this way a probate judge can rule on what the intent of the trust creator was, with the end result meaning that clear title would then be established, based on the court order.

Should the probate judge rule otherwise, then the real properties must go through the regular probate court's procedures.

I am learning some thing new here. Because the grant deed to the living trust was recorded after death, it creates a cloud on the title which makes it unsurable.

If the Grant Deed was properly executed and fully notarized it still may be considered valid but it will probably be reviewed by the probate court. If they do then the property would be released to the trustee.

The key is are any newer intervening documents recorded and are any challenges being made.

HOWEVER, she would still only be the Trustee... NOT the Owner/ Beneficial Interest of the property. If the deceased mother was a beneficial interest then that portion of her ownership could still be in probate unless a successor beneficial interest was identified in the Trust Document. A properly executed Trust should have that and it is one reason people use and should use Trust and avoid Probate.

The key is how well were the Trust Documents excited and when they were recorded would have a lesser importance. Your Client needs to have an attorney review those documents.

Good points, Realty Check. The living trust was created in 2004 yet the grant deeds transfering the real properties into the trust were never recorded. The daughter found them while clearing up her mother's belongings and then recorded the grant deeds.

It would seem that the next and best course of action wouold be for the daughter to try again to make contact with the attorney who created the trust in order to take it to the next legal level through the probate court. Her numerous phone calls to the attorney have not been returned.