Selling Real Estate Titled in a Living Trust: Can You Sell Property in a Living Trust?

 Posted on January 23, 2023 in Estate Planning

Yorkville Living Trust Lawyer: What is Needed to Sell Property in a Trust?

The process of selling property held in a living trust is the same as selling real estate in your personal name, with a few exceptions. The trustee of the living trust is selling property versus the living trust. A living trust is also referred to as a “revocable living trust” because it may be amended or revoked during the settlor or trustor’s lifetime. A settlor or trustor is a person or couple (or entity) that created a living trust. The trustor or settlor appoints a Trustee (or Co-Trustee) to administer and supervise the administration of the trust. While a person is alive and able to make their own decisions, the trustee or co-trustee is normally the person or couple that created the living trust. Upon the death or incapacity of the trustee, then a successor trustee will be named and appointed to spearhead the administration of the living trust.

Certificate of Trust

When one is selling or purchasing real estate in the living trust's name (or adding the living trust to the legal title), the seller's real estate attorney will need a certificate of trust or a copy of the trust agreement. The certificate of trust is a summary of the vital details of the living trust. The certificate of trust will ask the following questions:

• What is the name of the trust?

• The date of execution?

• Who is (are) the settlor or trustor of the trust?

• Is the trust revocable or irrevocable (meaning may it be changed or revoked)?

• Who has the power to amend the trust or revoke the trust?

• Who is serving the role of trustee (or co-trustee)? What is their name and who is the successor (and second successor trustee)?

• Does the co-trustees both need to sign the documents to sell the property (or is one signature enough)

• What are the key powers that are outlined in the living trust such as the power of the trustees to sell property; sign and refinance mortgages; and sign closing documents?

The purpose of the certificate of trust is to summarize the key powers that the title company is seeking. The title company wants to know who has the legal authority to bind the trust (or sell trust property). The title company wants to make sure that the trust was properly executed and still exists. They want to see who has the power to amend, revoke, or terminate the documents. One of the key reasons the title company wants to see the powers of the trustee is that mistakes are often found in the trust agreement or the past deed. In the case of mistakes, the trustees or co-trustees have the power (or may have the power) to amend the documents and fix the mistakes. It is well-understood in the real estate world that estate planning attorneys have difficulty with real estate deeds and document execution. Estate planning lawyers lack the real estate expertise of real estate attorneys. Here at Peace of Mind Asset Protection, LLC, we are owned by Gateville Law Firm, which is a real estate law firm trained and comprised of real estate attorneys and prior title company employees (and trained by the title company).

Multi-Board Residential Real Estate Contract 7.0

The Multi-Board Residential Real Estate Contract 7.0 ("real estate contract") is the major real estate contract used in the Chicagoland area and surrounding suburbs. The real estate contract contains the terms of the contract, including the seller's name. When selling real estate titled in the living trust's name the seller shall appear as follows: John Smith, Trustee of the John Smith Living Trust, dated January 1, 2022. Often, the real estate attorney must amend the contract and create an addendum, which is simple. The seller's name on the sale of real estate is often incorrect. Correcting this mistake is easy when the title company receives the title commitment.

A title commitment is a document produced by the title insurance company that contains the terms and conditions of the title insurance policy. In Illinois, the title commitment is produced after the title search is completed by the title company. The purpose of the title commitment is to show potential issues such as liens, judgments, back-owed property tax issues, and the legal holder of the property. The title commitment will also include the permanent index numbers and the legal description of the property. The title commitment will include a list of exceptions or exclusions from title insurance coverage issued under the title policy. The exceptions and exclusions will give the seller's attorney and buyer's lender (and the parties) notice of the issues, which must be addressed before closing. 

The title commitment is an important document to sellers and buyers, including their lenders, because it is a detailed report detailing the property's title history and potential insurance coverage risks (and title risks). The title commitment gives the buyer's lender and the buyer's attorney confidence that closing on the seller's real estate property is not a safety risk before issuing the loan to the buyer.

Oswego Living Trust Lawyer: Selling Real Estate in the Trust’s Name Can Be Simple

The goal of a successful closing is to provide a smooth process. One of the major documents considered in processing the legal title paperwork involving a living trust is the trust agreement. The trust agreement outlines the powers and responsibilities of the trustees and their powers. The title insurance company will review the trust agreement and make sure the sellers have legal title and the ability to sell the property. Peace of Mind Asset Protection, LLC can assist you with your real estate and living trust issues. Our law firm is owned partly by Gateville Law Firm, which is a real estate law firm. Contact us today at 630-882-2467 to discuss your situation with an estate planning lawyer.