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- Probate Code section 18100.5 lets a trustee present a certification of trust to anyone in place of a copy of the trust instrument.
- It is an acknowledged declaration signed by all currently acting trustees, stating that the trust has not been revoked, modified or amended in a way that makes it incorrect.
- A title company may require the excerpts that name the successor trustee and give the power to act in the sale.
- A person who demands the trust documents on top of a certification, in bad faith, is liable for damages, including attorney's fees.
A certification of trust is a signed, notarized statement of the facts about a trust that a buyer, a title company or a lender needs, handed over in place of the trust itself. Probate Code section 18100.5 sets out what it may contain and limits how much more anyone can demand.
For a successor trustee selling an apartment building, it answers the title officer's two questions, who is acting for the trust now and whether that person may sell, without putting the family's private terms in an escrow file.
What is a certification of trust?
Section 18100.5 lets a trustee present a certification of trust to any person, in lieu of a copy of the trust instrument, to establish the existence or terms of the trust. The trustee may sign one voluntarily or at the request of the person the trustee is dealing with.
The certification states facts. The trust instrument decides them. Who inherits what, when, and on what conditions stays in the instrument, and nothing in a building sale requires a buyer to see it.
It must be an acknowledged declaration signed by all of the currently acting trustees. It must also state that the trust has not been revoked, modified or amended in any manner that would make its representations incorrect, and that it is being signed by all of the currently acting trustees.
What does it contain?
The statute lists facts the certification may confirm. Each one answers a specific question in a building sale:
| What section 18100.5 lets it confirm | Why it matters when the trust sells a building |
|---|---|
| That the trust exists, and the date the trust instrument was signed | The name and date should match the vesting on the deed. |
| The settlors and the currently acting trustees | Shows that the person signing the grant deed is the trustee now. |
| Whether the trust is revocable or irrevocable, and who holds any power to revoke it | After the settlor's death, shows the trust or its relevant share is irrevocable. |
| With more than one trustee, whether all or fewer than all must sign | Tells escrow whose signatures it needs. |
| The trust identification number, whether a social security number or an EIN | After the death this should be the trust's new EIN. |
| The manner in which title to trust assets should be taken | Tells title how the trust holds the building of record. |
| The legal description of any interest in real property held in the trust | Ties the certification to this building. |
The certification may also include excerpts from the trust instrument, its amendments, and documents about the succession of trustees, though it does not have to.
The co-trustee line matters more than it looks. Probate Code section 15620 says a power vested in two or more trustees may be exercised only by their unanimous action unless the trust says otherwise. If three siblings serve together and the trust has no clause letting one act alone, all three sign the listing agreement, the contract and the deed.
Why do title companies ask for it?
The buyer's title insurer is insuring that the buyer receives good title from a person with the power to convey it. For trust property, the law gives that buyer a specific protection. Under Probate Code section 18100, a third person who deals with a trustee in good faith, for a valuable consideration, and without actual knowledge that the trustee is exceeding or improperly exercising a power, is not bound to inquire whether the trustee has the power, and is fully protected as if the trustee had it and were properly exercising it.
A certification of trust gives the title company and the buyer's lender the facts they rely on under that rule, in a signed and acknowledged document they can keep in the file. The statement that the trust has not been changed in a way that makes the certification incorrect comes from the trustees, over their own signatures.
When will they ask for the full trust?
Section 18100.5 lets a person whose interest is, or may be, affected by the certification require copies of the excerpts from the trust, its amendments and related documents that designate, evidence or pertain to the succession of the trustee, or that confer on the trustee the power to act in the pending transaction. For a sale, that means the pages naming you as successor and the powers clause.
It also limits the demand. A person who demands trust documents in addition to a certification to prove facts the certification states is liable for damages, including attorney's fees, if a court finds the demand was made in bad faith.
Expect a request for more when the certification leaves a question open:
- The trust has been amended or restated, and the succession clause changed along the way.
- The trust names a successor on a condition, such as one child serving only if another cannot.
- The trust limits the power to sell, or requires someone's consent.
- The trust's name or date on the certification does not match the vesting deed.
Offer the excerpts first. The statute frames the request that way, and the rest of the instrument is the family's business.
Preparing one for the sale
A certification signed before the death names the old trustee and describes a revocable trust. It no longer matches the facts, so the successor trustees sign a new one. Shaya is not an attorney, and the trust's attorney should prepare it. Before anyone signs, check it against three documents:
- The vesting deed, for the trust's exact name and date.
- The recorded affidavit of death of trustee, for the death and the successor.
- The trust's new EIN confirmation from the IRS.
Have every acting trustee sign before a notary, and keep several signed originals. Escrow, the buyer's lender and the trust's bank may each want one.
Once the certification is ready, the building can be listed with the paperwork title will ask for already in hand. Shaya can start the pricing and marketing work in parallel, so the listing does not wait on the attorney's office or the other way around.
What a certification cannot do
It states facts about the trust. It cannot change them. If the building was never deeded into the trust, a certification does not put it there, and the route is a probate or a petition under Probate Code section 850, covered in the main guide. If the trust limits the power to sell, the certification cannot enlarge it, because section 16200 gives the statutory powers only as far as the instrument does not limit them. And if a beneficiary disputes who the trustee is, the certification will not settle it. That kind of dispute is one for a petition to the court under section 17200.