December 2016 • Volume 104 • Number 12 • Page 41
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Estate Planning / Real Estate
From the Discussions - How do you show that the trustee accepted a transfer of real estate?
Q. How do you show acceptance by the trustee of a transfer of real property into a trust under Pub. Act 99-0743?
(From the ISBA transactional discussion group)
Kathie Dudley, Columbia. I have seen the new law [Public Act 99-0743] regarding transfers of real property into a trust. [See Matthew Hector, "Overturning Mendelson: Bill would forbid conveying real estate to trust without deed" (May 2016 Journal).] I have always used recorded deeds to evidence the transfer, so that particular part of the law is not new to me. However, as of 1/1/17, an "acceptance by the trustee" is required. I am trying to decide how best to handle the acceptance.
Should it be part of the deed or would a separate acceptance signed by the trustee and kept in the client's records and our client file be sufficient? Perhaps there is a third alternative I have not considered. I am leaning toward having the acceptance right on the deed so that we do not have to produce the separate acceptance document to a title company or financial institution at a later date.
ISBA lawyers respond
Gregory Catrambone, Westchester. The deed in trust is exempt from transfer tax and therefore the exemption statement has to be signed by the grantor, grantee, or agent. I propose that it be signed by the grantee as trustee as an indication of acceptance.
Dick Bales, Chicago Title. My company is taking the position that acceptance is presumed with recording. We are not going to make an issue with this.