Q: I am named successor trustee in my parents’ trust. When the time comes, how do I sell the home and the other assets?
A: This is a common concern among those of us named as successor trustees in a trust. What do we need to do and how do we do it?
Obviously, the first thing you need to do is verify that you are in fact the successor trustee and what authority and powers you have. If the settlor is disabled rather than deceased, make sure that you have complied with the requirements to assume your position. The trust will likely provide what you must obtain to assume your authority. For example, the trust may require a letter from a physician stating that the settlor is incapacitated and can no longer handle their affairs.
If the settlor is deceased, establishing that you are in fact the successor trustee is easier. A death certificate is usually all that it takes.
Once you know that you are serving as the successor trustee, you need to be able to prove it to the world. I use an Affidavit of Trust and Acceptance and Oath. My affidavit affirms under the pains and penalties of perjury that the affiant is the successor trustee and that they accept their designation and agree to follow the terms of the trust and laws of the state.
Attorneys may approach this differently. Some will use a certificate of trust or simply use a copy of the trust agreement. As long as the successor trustee’s authority is demonstratable, it should be OK.
Once the successor trustee has established that they are the duly appointed and acting trustee, they can start administering the trust.
Your question mentioned selling the home. Real estate transfers are handled by the local government. In order to transfer real estate, a deed is usually required. An affidavit can also be used under certain circumstances, but the successor trustee will likely require a deed.
When a successor trustee transfers real estate, I usually record a copy of the affidavit with the relevant documents attached. I also include a recital in the deed stating that the person signing the deed is the current trustee and has the authority to transfer the real estate. My goal is to satisfy a title examiner.
Other assets are transferred substantially the same way. Contact the asset holder, provide a copy of the Affidavit and the proof of your designation as successor trustee and follow their procedure. Easy peasy.
Once you have established that you are the acting trustee, you should be able to take whatever steps are necessary to administer the trust and to liquidate or transfer the assets. The details may vary, but the overall procedure should be the same. You may also want to check the back of the trust portfolio. A lot of attorneys, myself included, add a letter of instruction to successor trustee providing them with some helpful information and tips on how to proceed with the trust administration.
Christopher W. Yugo is an attorney in Crown Point. Chris’ Estate Planning Article appears online every Sunday at www.nwi.com. Address questions to Chris in care of The Times, 601 W. 45th Ave., Munster, IN 46321 or to Chrisyugolaw@gmail.com. Chris’ information is meant to be general in nature. Specific legal, tax, or insurance questions should be referred to your attorney, accountant, or estate-planning specialist.
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