The Certification of Trust: What Your Lender Needs (and What It Doesn't)

What goes in it

The statutes differ in wording but agree on substance. A certification typically confirms:

• that the trust exists, and the date the trust instrument was signed;
• who created it (the settlor or settlors);
• who the currently acting trustee is, with an address;
• the trustee's powers — for a loan, the power to borrow and to encumber real property;
• whether the trust is revocable, and who holds the power to revoke it;
• whether co-trustees must all sign or one may act alone;
• how title to trust property is to be taken (for example, "Jane Doe, Trustee of the Doe Family Trust dated May 1, 2014");
• a statement that the trust has not been revoked or amended in a way that makes any of the above untrue.

It is signed by the trustee, usually before a notary. Your estate-planning attorney may have given you one with the trust; if not, it is a short document for them to prepare.

What the lender can and cannot ask for

Under Florida's statute, a person dealing with the trustee may require copies of excerpts from the trust instrument and later amendments that designate the trustee and confer the power to act in the transaction — but may not require the whole instrument under that section. California's statute works the same way, and adds teeth: a person who demands the full trust after being offered a certification, and is found by a court to have acted in bad faith, can be liable for the damages and attorney's fees that refusal caused. Neither statute requires anyone to disclose the dispositive provisions — the parts that say who inherits.

In practice that means you hand over the certification, the signature page, the page naming the trustee, the page granting the power to borrow and encumber, and any amendment that changed those. Your family's private arrangements stay private.

Why lenders and title companies are comfortable with it

Because the statutes protect them. A lender that relies on a certification without knowing it is wrong is not liable for acting on it, may assume the facts it states are true, and can enforce the transaction against trust property as if those facts were correct. That reliance protection is what lets a title insurer issue a clean policy on the new lien — and the clean policy is what the program actually requires.

When a program still asks for the whole trust

Some lenders send every trust to their own attorney for review, and want the full document to do it. That is a program policy, not a legal requirement in states with certification statutes, and it is one of the things we sort out at the start: if a program wants more than you are comfortable sending, we look at the programs that do not.

A checklist for the file

1. Certification of trust, signed by every currently acting trustee, notarized.
2. The signature page of the trust and of each amendment.
3. The page or pages naming the current trustee and any successor appointment.
4. The page granting the trustee power to borrow and to mortgage or encumber real property.
5. The recorded deed into the trust, so the title search and the documents match exactly.

Questions trust owners ask about this