Bulletin: FL2007008

Dear Associates:

This bulletin addresses closing procedures under the new Florida Trust Code which became effective on July 1, 2007.  The new Florida Trust Code altered the procedure for handling common law or statutory land trusts created pursuant to Section 689.071 F.S. 

What has changed?  The requirement that you always review the trust when the trustee is not given powers in the vesting deed.

The new code eliminates the requirement of producing the trust for inspection and review.  Rather, Section 736.1017 allows the trustee to furnish a certification of trust establishing the following:

(a) The existence of the trust and date of execution.
(b) The identity of the settler.
(c) The identity of the trustee and current address
(d) The trustee’s powers.
(e) Whether the trust is revocable or irrevocable and identity of any person holding power to revoke the trust
(f) The authority of co-trustees to sign or otherwise authenticate and whether all or less than all are required in order to exercise powers of the trustee.
(g) The manner of taking title to trust property.

The certification must also state that the trust has not been revoked, modified or amended causing the representations in the certification to be incorrect.   Accordingly, if the trustee named in the vesting deed provides a certification, you are no longer required to review the trust.  If a trustee other than the original trustee in the vesting deed is seeking to covey or encumber the property, the trustee should be asked to provide copies of excerpts from the original trust document or amendments designating the trustee and the powers to act.

What has not changed?

Stewart’s procedures have not changed with regard to closing transactions involving trusts formed under F.S. 689.071 where the vesting deed contains the trustees’ powers.  You may continue to close and insure without reviewing the trust or amendments.  However, in the event of a death of a trustee, a change in a trustee, or actual or constructive notice that the trust has been amended, pertinent parts of the trust should be attached to the certification and recorded.  Additionally, if the agent has knowledge that the representations in the trust certification are incorrect, it must not be relied upon and the agent should require the production of the entire trust and amendments for review.

In addition, the new law does not change our current policy for clearing final judgments against a trustee who is also the named beneficiary under the trust.  These judgments should be satisfied.  Finally, having the trustee execute the deed individually, joined by the trustee’s spouse, when conveying homestead property, remains a requirement.

A sample form of Certification is attached as Exhibit “A” for your reference and you may access The Florida Trust Code in its entirety at http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0736/0736.html
Should you have questions regarding the New Trust Code or its application, please do not hesitate to contact underwriting counsel.

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