Does an Unrecorded Deed in a Trust Avoid Probate?

Recording a Deed is Not Necessary to Avoid Probate

Transferring real estate into a trust will generally avoid probate, even if the real estate deed was never recorded.

In general, a deed does not need to be recorded with the county recorder’s office to be valid. The deed merely needs to be complete and have been delivered from the grantor to the grantee. Under Minnesota law, real estate is effectively transferred when the deed is delivered from the grantor to the grantee.

Example

Imagine Jennifer Anderson creates an irrevocable living trust to avoid probate upon her death. Then Jennifer transfers her home into the trust by executing a deed from “Jennifer Anderson” (grantor) to “Jennifer Anderson as trustee of the Jennifer Anderson Living Trust” (grantee). Jennifer dies before this deed is recorded in the Hennepin County Recorder’s Office. In this case, the transfer from Jennifer to her trust is effective and will avoid the home from going into probate upon her passing.

As you can see, recording a deed to a trust is not necessary to avoid probate. You may ask, “then why record the deed?” Recording the deed has two benefits. First, it ensures the deed is recordable: in a form acceptable by the Recorder’s Office. Second, filing the deed would establish priority for the deed. That is if any other deeds are recorded on the property, the deed recorded first has priority over the others.