30 Nov What would happen if a husband takes property out of a trust?

Q. Is there a way a husband can transfer his separate real estate property out of a revocable trust without his wife’s signature? The trust states that it may be revoked, terminated, amended or modified by either settlor and a copy of that change must be delivered to the other settlor. The wife acknowledged that the real estate is his separate property because she signed the trust, which has an attached exhibit listing the property as husband’s separate property. But now, the husband believes the wife would not agree to this transfer and when she receives notice of it, she will make his life miserable and badger him until he relents and transfers it back so that her children from a previous marriage are among the final beneficiaries.
— I’m the husband

A. Without reviewing the trust, and seeing exactly what it says about the property owned by the husband, it will be impossible to say for sure.

“Under New Jersey law, no matter which spouse holds legal title, the other spouse has a possessory right to continued possession as to the principal marital residence under certain circumstances,” said Shirley Whitenack, an estate planning attorney with Schenck, Price, Smith & King in Florham Park. “While the attorney who drafted the trust may have a conflict in counseling one spouse alone, the reader can have another attorney review the trust to determine the rights of both spouses in the real property.”

So it’s time to get a separate attorney who can review and see what the document says, and what actions may be in your best interest.

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This story was originally published on Nov. 30, 2022.

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