How to record an affidavit of death of trustee in Los Angeles County

An affidavit of death of trustee is the recorded document that puts the trustee's death on the county record for the building. Once it records, a title company can follow the chain from the deed that put the building in the trust to the successor trustee who signs the next deed.

It does not convey anything. The trust owned the building before the death and still owns it after. What changed is who acts as trustee, and the affidavit establishes the fact that triggered the change.

What does the affidavit do?

Probate Code section 210 covers any death that affects title to real property. It lets any person record, in the county where the property sits, a document establishing the fact of the death. One option is an affidavit of death signed by a person with knowledge of the facts. The other is a certified copy of a court order that determines the death.

Under section 211, the document is subject to every statutory requirement for recorded documents, and the county recorder indexes it in the grantor and grantee index. Indexed that way, the affidavit becomes part of the record a title examiner searches, and it connects the old vesting deed to the person now signing for the trust.

For a successor trustee, the affidavit works together with the certification of trust. The affidavit shows the named trustee has died. The certification shows who is acting now and what powers that person holds.

What goes into it, and what goes with it

Section 210 sets three requirements for the affidavit itself:

• It is executed by a person who has knowledge of the facts. The successor trustee, who knows both the death and the trust, is the natural person to sign.
• It includes a particular description of the real property. Copy the legal description word for word from the deed that vested title in the trust, and identify that deed by its recording date and document number so the examiner can match them.
• It carries an attested or certified copy of the death record filed in a public office. A photocopy of the death certificate does not qualify.

The Registrar-Recorder adds its own requirements. Its recording requirements page says a document must be properly acknowledged unless exempt, and that California requires an all-purpose acknowledgment. Every part of the document has to be legible enough to produce a readable photographic record, and that includes the notary's seal and attachments such as the legal description.

Shaya is not an attorney. If the vesting on the deed does not match the trust's name, or the trust names its successor on a condition, have the trust attorney prepare the affidavit rather than filling in a form yourself.

Recording it with the Los Angeles County Registrar-Recorder

The Registrar-Recorder/County Clerk's page on the affidavit of death of joint tenant or trustee says that at the time of recording you must present three things:

1. The completed affidavit, signed and notarized.
2. A certified copy of the death certificate.
3. A Preliminary Change of Ownership Report.

The county posts a sample affidavit of death of trustee. The PCOR form is available at Registrar-Recorder offices in Norwalk, Lancaster, the LAX Courthouse and Van Nuys, and at the County Assessor's offices. The same page notes that a PCOR is not needed for a death of beneficiary under a deed of trust, a lender-side document, and is required for an affidavit of death of trustee. Recording carries a fee, so confirm the current amount on the Registrar-Recorder's site before you go.

If the building is already in escrow when you get to this step, ask the title company whether it will record the affidavit ahead of the grant deed.

The PCOR and the Assessor's death-of-owner statement

Two different forms go to two different offices, and they are easy to confuse.

The Assessor's death-of-owner page says the BOE-502-D, which Los Angeles County numbers ASSR-176, is required even if the decedent held the property in a trust. The Board of Equalization's guidance puts the filing on the trustee when the property was held in trust, in each county where the decedent owned real property. The Board of Equalization's materials warn that failing to file within the time the law prescribes can bring a penalty, so treat the 150 days as a real deadline even though no sale depends on it.

What happens after it records

Once the affidavit is on record, the building's title shows a trust with a successor trustee in place. From there the sale runs the way any trust sale does. Title will want a certification of trust signed by every acting trustee, and possibly the trust pages that name you and give you the power to sell. The buyer's escrow will need your notarized signature on the grant deed, and the signatures of any co-trustees.

Recording early helps. Title will look for the death on the record before it insures the buyer, and a problem in the affidavit, such as a legal description that does not match the deed, is easier to fix before a buyer's contingency dates are running. The main guide puts this step in order with the rest of the administration.

Problems that hold up a recording or a sale

• The deed never went into the trust. If the vesting deed names the person who died as an individual, an affidavit of death of trustee does not fit the facts. The building may need a probate or a petition under Probate Code section 850, described in the main guide.
• The names do not match. The trustee's name and the trust's name and date on the affidavit should match the vesting deed exactly.
• The legal description is off. An abbreviated description, or one copied from a tax bill instead of the deed, can draw a title objection.
• Two trustees have died. If a married couple served together and both have died, the record has to account for each death. Ask the title company how it wants that shown.
• The trustee is alive but cannot serve. Incapacity or resignation is not a death, and it calls for different documents. The trust attorney will know which ones.