Nearly 20% of Americans have a Living Trust that protects their assets in several ways. When you place real estate, precious art, family heirlooms, savings accounts, or any other essential items into a Living Trust, you're no longer in charge of handling them.
A trustee takes over and oversees their management from that moment on. A trustee has a fiduciary duty towards the beneficiaries of the Living Trust and can't use the agreement for their personal gain.
Still, they can open bank accounts, buy and sell real estate, and perform similar actions. To do that, they need to prove to banks and other institutions that they're indeed the trustee.
However, as many people choose to create Living Trusts to avoid the probate process and retain privacy, trustees can't use the Living Trust agreement as evidence. Instead, they can use the Certification of Trust.
In the simplest terms, a Certification of Trust is a document that certifies the existence of a particular Living Trust. The main benefit of Certification of Trust is that it doesn't contain all the details the Living Trust does but serves the same purpose.
Many grantors want to conceal the names of their beneficiaries or don't want public institutions to have insight into their personal assets.
Therefore, they urge the trustee to use the Certification of Trust when moving the assets in any way. The certification gives all the pertinent information banks or real estate agencies need to conduct business.
A Certification of Trust or Memorandum of Trust essentially gives the authority to the trustee to complete the duties assigned to them.
Depending on your state, you may also know a Certification of Trust as:
A Certification of Trust is a document created for the trustee. This person can be almost anyone, as long as they are of legal age.
However, as they are in charge of overseeing finances, the trustee is typically someone the grantor can trust completely. The trustee can also be a neutral party, such as an attorney compensated for their services.
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The Certification of Trust is a reasonably straightforward document but must contain accurate information. Creating an abbreviated version of a Living Trust can take time, and sometimes you need the document in a hurry. That's why we offer a more straightforward solution.
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You should carefully review a Certification of Trust to ensure it matches the information in the Living Trust. To be legally enforceable, the grantor must sign it in the presence of the notary public. Make sure to check the state's laws for additional requirements.
Once the Certification of Trust is signed and notarized, you should distribute several copies. It doesn't contain any private details, so a county clerk's office should receive a copy, unlike a Living Trust. The grantor and the trustee should also have a copy of the certificate.
The grantor appoints the trustee. It's typically not a small decision to make, as it can carry devastating repercussions if you don't handle it correctly. Again, as the trustee has a fiduciary duty towards the beneficiaries, their failure to deliver can lead to removal by the court.
Furthermore, a Living Trust can have more than one trustee, which isn't recommendable as it can create conflict. That's why naming a successor trustee is a better solution. A grantor can designate as many trustees as they want.
There is no universal law covering the exact scope of the Certification of Trust. However, most states have specific requirements for the Certification of Trust, but not all.
It's essential to verify the state statute regarding these types of certificates before using one to manage assets in a Living Trust.
It's not necessary to use a lawyer to create a Certification of Trust, but many people do. So long as you're familiar with your state's requirements and have access to the terms of the Living Trust in question, the process of writing the Certification or Trust can be pretty straightforward. However, keep in mind that all the information on the certificate must be accurate and up to date.
That entirely depends on the circumstances. For example, you must provide an official update if the trustee dies or resigns and the successor trustee isn't named.
An update is in order if there have been changes regarding the beneficiaries. Also, if they sold some of the assets or bought new ones, the Certification of Trust must reflect it.
Living Wills and Living Trust frequently use integrability, but they're not the same document. The Living Will mainly contains a person's decisions regarding end-of-life care and becomes null and void after they die.
On the other hand, a Living Trust is more about asset protection and placing the responsibility of its management on the trustee. Also, a Living Will goes through the probate process, whereas Living Trusts try to avoid it altogether.
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