Trusts and Real Estate Conveyance

Trusts can be used for a variety of purposes in estate and wealth planning. A common use for a Trust is to hold real estate property. Whether holding the real estate is the sole purpose of the Trust, or just one of the assets with which the Trust is funded, the real estate must be conveyed into the Trust, and one day the property may be sold and will need to be conveyed out of the Trust to a Buyer.

The Current Law for Conveying Real Estate into a Trust

Currently, the law regulating transfers of real estate property into a Trust holds that a Deed conveying real estate to a Trust directly does not convey good title because a Trust does not have the capacity to hold title to land. In order to properly convey title the Deed must name the Trustee of the Trust as the “Grantee”, or individual receiving the property. The idea here being that the Trustee is holding and caring for the property on behalf of the Trust.

If the property is in fact conveyed to a Trust directly, it is not validated until 2 years have passed without issue.

When it came time to transfer the property out of the Trust, once again the Trustee would be needed, but it is in fact the Trustee who is holding the property.

New Law Takes Effect October 1, 2016

Coming into effect this October is Public Act 16-194 which changes the procedure for transferring real estate property into a Trust. The Act reads:

“Any conveyance of an interest in land to a trust rather than the trustee or trustees of the trust shall constitute a valid and enforceable transfer of that interest. Any conveyance by the trust, which conveyance is signed by a duly authorized trustee of such trust, shall be treated as if the conveyance was made by the trustee.”

The new law should resolve any confusion or problem when transferring property into or out of a trust by allowing the trust, and therefore any trustee, to convey the real estate.