Posted by Randy M on March 19, 2001 at 23:48:37:
T,
Like most of us, I have given that post quite a bit of consideration. I am happy to agree with Mr. Warda in principle. In practice, however, there are a few differences.
First, as has been the topic of many of mine and Bill Gatten’s posts, there are many different uses and types of trusts. Mr. Warda seemed to lump them all in one category in his post. Now, I’m sure that as a twenty-year veteran of law he fully understands that there are many variations, uses and purposes for trusts. I was troubled that he sort of lumped land trusts into one category - which is a potentially-critical mistake from my viewpoint.
Because Mr. Warda made some compelling and well-structured arguments, I spoke with a few trust lawyers I work with and with some other CEPs around the country. Their general consensus is that if the Clerk of Records, County Recorder (or whatever the official title is) requires that the Trustee’s name is included on the deed, it must be furnished.
One of my most trusted specialist attorneys from Philadelphia pointed this out: Just because the Trustee’s name doesn’t appear on the deed - that does not mean that the trust or the conveyance of the property into the trust is invalid. In the event a lawsuit over a certain property was pursued the Trustee could be exposed at that point. In other words, the act of not exposing the Trustee of a trust does not and should not invalidate the trust or the conveyance of the property into the trust. In this case, I am speaking about what is commonly referred to as a revocable living trust. Irrevocable trusts are a different matter altogether.
There are all sorts of quirky state laws that can affect the drafting and operation of most trusts. I know in my family’s estate planning practice of over thirty years (only the last six of which I have been at the helm), we have helped clients deed countless properties to revocable living trusts with only the trust’s name as the grantee. We have never encountered a problem over this. Of course, the people we deal with who have done this don’t have judgments and other business problems hanging over their heads. Naturally, sticky situations require different types of trusts and different levels of protection.
I would like to see this issue expanded - especially by Mr. Warda - to include his definition of “land trust.” I think that is really the best starting point. I hope he will engage in this because I think he has a LOT to offer this board.
Best of SUCCESS
Randy M