When a real estate title find its way into a living trust, the deed to the real estate identifies the trustee of the trust as the record owner of the property. This means that the trustee's signature is generally the only signature that can convey the title back out of the trust. However, some legal tools may help others assist the primary trustee of the trust in conveying the trust property out of the trust.
Power of Attorney
A power of attorney is a legal document that gives one person authority to perform actions on behalf of another person. A trustee can implement a power of attorney to allow a third person to sign a deed on behalf of the trustee. A signature from a valid power of attorney has the same effect as a signature from the trustee.
Several state laws require that a power of attorney used in connection with a deed must be recorded along with the deed. This means that if a third-party agent signs a deed under power of attorney from a trustee, that power of attorney must be recorded along with the deed. Recording means putting a copy of the power of attorney, and the deed, in the public county property records.
A problem may arise if trust property is titled in a trustee's name and the trustee passes away or becomes unable or unwilling to deal with the trust property. The trust agreement may provide a standardized procedure for the appointment of a new trustee, called the successor trustee. If not, state court judges have authority to appoint successor trustees under these and other circumstances. The successor trustee can sign a deed conveying trust property, even though the successor trustee's name does not appear in the property chain of title.
Read More: Transferring Property From a Living Trust to a Successor Trustee
Some trust agreements create co-trustee relationships, meeting two or more trustees cooperatively manage the trust and the trust property. If a trust appoints co-trustees, but some of the trust property is only titled in the name of one trustee, the other co-trustee can still sign a deed conveying the trust property. In other words, each co-trustee has authority to sign deeds on trust property, even if only one co-trustee appears on the property chain of title.
- "Modern Real Estate Practice"; Fillmore W. Galaty, Wellington J. Allaway and Robert C. Kyle; 2007
- "Make Your Own Living Trust"; Denis Clifford; 2009
The Constitution Guru has worked as a writer and editor for "BYU Law Review" and "BYU Journal of Public Law." He is an experienced attorney with a law degree and a B.A. degree in history with an emphasis on U.S. Constitutional history, both earned at Brigham Young University.