The certification of trust (§736.1017): what it says, who relies on it, and why the whole trust stays private

What the certification states

Section 736.1017(1) lists the contents. Instead of furnishing a copy of the trust instrument to a person other than a beneficiary, the trustee may furnish a certification of trust containing: that the trust exists and the date the trust instrument was executed; the identity of the settlor; the identity and address of the currently acting trustee; the powers of the trustee; the revocability or irrevocability of the trust and the identity of any person holding a power to revoke; the authority of cotrustees to sign and whether all or fewer than all are required; and the manner of taking title to trust property. The trustee signs it, and the statute has it state that the trust has not been revoked, modified or amended in any way that would make the representations incorrect.

What it does not contain is the dispositive terms: who the beneficiaries are, what they receive, when. That omission is the document's purpose.

What a recipient may and may not require

A recipient of a certification may require the trustee to furnish copies of the excerpts from the original trust instrument and later amendments that designate the trustee and confer on the trustee the power to act in the pending transaction (§736.1017(4)). A recipient may not require the whole instrument, and a person who acts in reliance on a certification without knowledge that its representations are incorrect is not liable for so acting; a person who in good faith enters a transaction in reliance on it may enforce the transaction as if the representations were correct (§736.1017(5), (6)).

The section also carries a stick. A person who demands the trust instrument in addition to a certification, or the excerpts, is liable for damages if the court determines the demand was not made in good faith (§736.1017(8)). Most institutions know this; a branch that does not usually accepts the certification once its legal department has read the section.

When the certification is used

Opening or retitling the trust's bank and brokerage accounts after the settlor's death, together with the death certificate and the trust's employer identification number; selling or refinancing real estate the trust holds, where the title company will also want the deed history; dealing with a business the trust owns; and, during the settlor's life, funding the trust — a settlor who signs a certification the week the trust is signed hands the successor the document the successor will need first.

Preparing one

Many trust packages include a certification; when one does not, the trustee prepares a document that walks the statutory list in order, dated and signed by the trustee, and — though the statute does not require it — often notarized, because recipients expect it. Keep it with the trust instrument, update it when the trustee changes, and attach the excerpts a recipient is entitled to request so that one envelope answers the whole question. A certification that names a former trustee, or omits the cotrustee signing rule, is the common reason a bank hesitates.

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