Although people prefer to keep their confidential information in their living trust private, in some cases, the settlor(s) may need to disclose limited information after executing the Trust to accomplish tasks such as retitling assets into the trust, borrowing money against trust assets, and insuring the trust as the owner of real property.
Thankfully, third-party requests for trust information from banks, insurance companies, and brokerages are limited. They typically ask if the trust is revocable or irrevocable, who the current trustees are, what powers the trustee has, how trust assets should be titled, what the trust’s taxpayer identification number is, and if the trust has been amended. The trustee’s certification of trust provides all the necessary information.
In California, the Probate Code’s section 18100.5 allows trustees to provide a certification of trust in lieu of providing a copy of the trust instrument to establish the trust’s existence or terms. The certification must meet specific requirements, including stating that the trust has not been revoked or modified in any way that would cause the certification’s representations to be incorrect, be signed by all currently acting trustees of the trust, and have a notarial certificate acknowledging each trustee’s signature.
A certification of trust is often required when dealing with banks, stock transfer agents, brokerage houses, insurance companies, title companies, and other third parties. Estate planning attorneys usually provide one with the trust for the client to copy and provide to retitle and insure trust assets.
If a third party still insists on copies of the trust document after receiving a certification of trust, the person providing the certification may refuse. If the matter becomes controversial and goes to court, and the court determines that the third party acted in bad faith in requesting the trust documents, damages, including attorney’s fees, can be awarded.
It’s important to note that the initial certification of trust received with the trust becomes stale over time and must be updated each time the trust is amended. Even without amendments, an old certification of trust is often unacceptable to third parties seeking to rely on it.
In some cases, a client may need to provide a portion of the trust that’s not typically found in a certification of trust. For the excerpt to be acceptable, the trustee will need to provide a trustee’s certification of the abstract of trust.
Lastly, it’s not always necessary to provide either the certification of trust or the abstract of trust. Some third parties are satisfied if the settlor provides them with a copy of the first page (title/declaration page), the section listing the names of trustees, the signature (execution) page, and the notary page from their trust. If this simplified approach isn’t acceptable, anyone needing to provide a certification of trust or a certification of abstract of trust may consider calling an estate planning attorney for assistance.