All you need to create a Land Trust are two documents. A Deed to Trustee and a Trust Agreement. The heart of a Land Trust is the Trust Agreement (TA). The Deed gets recorded, and you are the one who watches over the important Trust Agreement. It follows then, that you should use careful Land Trust recordkeeping. So, what do you do when you can’t find your TA?
Your first phone call should be to your Trustee. She/He/It should have a copy. But, sometimes things happen and even your Trustee can’t find a copy of your TA. Your frustration mounts when your Land Trust recordkeeping has broken down so far you can’t locate your TA! Aggravating the situation, you went looking for it for a reason and you need it now!
Why do you need your Trust Agreement?
You may need your TA because you are getting ready to sell the property out of the Trust and you need to prove to a closing agent, title company, or attorney that the Trust exists. Or, you need to make a change (amendment) to the TA (i.e. change of Beneficiary or change of Trustee).
First, I would suggest that you learn your lesson so this never happens again. Make sure that you keep two copies of each TA in addition to the copy retained by the Trustee. Keep a hard copy in your property files filing cabinet and keep an electronic copy on a Memory Stick in your safe at home or in your safe deposit box at your bank.
Here’s How You Fix It
Now, back to the problem. A Trust Agreement is not like a Will. By statute, Wills can be revoked by destroying them. Therefore, if no one can produce a valid Will upon the death of the testator, there is a presumption that the will was revoked.
This is not the case with a Land Trust Agreement! If a TA cannot be found there is no presumption that the agreement was revoked. If a photocopy cannot be found of the original TA, the Beneficiary can Restate the Trust Agreement by typing up a new one!
All the Beneficiary needs to do to recreate the TA is put at the top of page one of the newly formed TA: Amended and Restated Trust Agreement.
Then, in the body of the TA, attest to the fact that the original TA could not be found and that the Beneficiary is certifying that the new agreement is a true and accurate restatement of the original Trust Agreement.
So, remember these Land Trust recordkeeping credos: Keep multiple copies of your Trust Agreement, and any amendments, in several geographically different locations. But, if all else fails you know that you can always recreate the TA, if necessary.