Is Your Home in a Trust or Just in Your Name? Why It Matters Legally in Massachusetts

Home ownership brings with it many responsibilities and decisions to make. If you do not intend selling your home in the near future and are likely to include the home as part of the assets that you will leave to your family or other beneficiaries when you die, then you may wish to consider the advantages of creating a living trust. The decision doesn’t have to be a final one as your home can be included in a revocable trust which can be reversed, i.e. cancelled at any time. This article explores the types of living trusts that can be used to protect your property, why they have potential benefits and how to create one.

What is a living trust?

A living trust is simply a trust created while you are still alive. Assets can be transferred into the trust which is then managed on your behalf until you die or, in the case of a revocable trust, cancelled or ‘revoked’. On death, the trust’s assets are distributed according to the conditions of the trust to the named beneficiaries, who could be your surviving family members, or anyone else you wish to be a beneficiary or a charity. Typically, while you are of sound mind, you can name yourself as the trustee, i.e. the person overseeing the management of the trust. If you are married, you may decide to create a shared living trust, so that you and your spouse can manage the trust.

When a living trust is created, a ‘successor’ trustee is also named. This trustee will be responsible for distributing the assets in the trust to the beneficiaries when you die. If you have a shared living trust, then the successor trustee will only be responsible for distributing the assets in the trust after both spouses die.

Revocable and irrevocable trusts

The majority of living trusts are of the revocable type. A revocable trust can be modified or revoked, i.e. cancelled at any time. An irrevocable trust, as the name suggests, cannot be modified or revoked after its creation. Basically, once your assets, such as your home, have been transferred into this type of trust, you have lost any control over the trust and cannot access any of its assets. There are some benefits of creating an irrevocable trust (otherwise it wouldn’t be likely to be an option!). These will be explored further below.

Trust versus a will – pros and cons

The main benefit of creating a trust for primary assets like your home rather than keeping them in your own name is that after your death, the assets can be distributed according to the trust’s conditions virtually straight away. If you instead leave the home and other assets in a will to your beneficiaries, according to Massachusetts law, they must await probate. Probate can take time, usually a minimum of 6 months, but it could be longer if there are any challenges to the will. Delays and legal wrangling could reduce the value of the assets and increase the time before assets become available to beneficiaries.

This doesn’t mean that a will should not be created. If there are other assets other than the home which got left out of the trust when it was created, or were overlooked, then without a will, these would be accordingly distributed after probate under Massachusetts intestate laws. This can become a burden and a source of frustration and anxiety to your family members who might have expected to be beneficiaries.

The other benefit of a will is that a guardian for a minor beneficiary can be named to look after the interests and welfare of the minor child if you die before they are old enough to look after themselves. Trusts, on the other hand, cannot appoint a guardian as such, although they can be created so that the trust’s assets can be managed in such a way that a beneficiary who may be mentally disabled or otherwise incapable of managing finances by themselves can receive the trust’s income and assets over their lifetime.

Note that Massachusetts has adopted a more streamlined probate process called the Uniform Probate Code and also has simplified probate processes for small valued estates. This means that if your total assets do not include the value of a home, it is probably not worth creating a trust.

Estate taxes and trusts

Both Massachusetts state estate taxes and federal estate taxes may be payable on death before assets are distributed to beneficiaries. Whether the main part of your estate is in a living trust or held in your name, estate taxes may be payable according to the value of the assets. In 2025, federal estate taxes are only paid if the estate is valued at more than $13.99 million (for single individuals) or $27.98 million for married couples. Massachusetts’ estate taxes may be payable if the value of the estate is more than $2 million.

Revocable and irrevocable trusts – pros and cons

As has already been explained, a revocable trust is one in which you, as the trustee, remain the legal owner of the trust’s assets, even though the transferred assets are put in trust on your death (or that of your spouse when both of you have died) to named beneficiaries. This gives you control over the trust assets and management of them and also means you can cancel the trust or modify it. However, because you, as the trustee, remain the owner, you are liable for any debts demanded by creditors and the trust’s assets may be taken into account if you apply for Medicaid or disability benefits.

When an irrevocable trust is created, all the assets are transferred from your name into the trust and you are no longer able to modify or reverse the trust. The advantage of creating an irrevocable trust is that the trust’s assets may not be the target of creditors because they are no longer in your name. Medicaid and other federal benefits may also be more accessible as your total assets are now no longer as much as when the home or other assets were in your name.

Should you create a trust or keep your home in your own name?

Deciding what you do with your estate can be quite challenging. Rules about trusts and wills, estate taxes and whether debts need to be repaid can be quite complex. Who to appoint as a successor trustee or a power of attorney can be difficult decisions to make. It is worth getting help to manage your estate from a knowledgeable Massachusetts estate attorney.

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