There is a trust but the assets were not transferred into it. Can probate be avoided?

A trust is only valid if it is “funded,” or in other words, has assets in it. Funding a trust means changing title of property to show the trust as owner, such as “John Doe, Trustee of the Doe Family Trust.” For many reasons, a trust may be drafted and signed but not funded. For example, a person may make a trust, fund it with their home, but when they refinance the mortgage on that home, the new lender will require that the trust name be removed temporarily. Then the owner dies, and the trust is not funded with the home.

Assets outside of a trust must be probated. There is a small exception in Nevada that can avoid this issue. If the trust has an “Exhibit A” or other attachment that specifically lists the trust maker’s assets, that list can be used to get an order from the probate court that puts the assets in trust as they were intended to be. This still requires a court proceeding, but it is much less expensive and complicated than a full probate case that would otherwise be required.