When you’re ready to transfer trust real estate to the beneficiary who is named in the trust document to receive it, you’ll need to prepare, sign, and record a deed. That’s the document that transfers title to the property from you, the trustee, to the new owner.
What Kind of Deed?
There are lots of kinds of deeds. You need one that is called a “quitclaim” or “grant” deed. Don’t use a “trust deed,” even though that probably sounds like just the form you need—it’s used when someone is mortgaging property, not transferring it to a new owner.
Every state has rules about deeds—what language they must contain and how they must be notarized or witnessed. There are even rules about how much blank space must be left at the top of the page. So be sure to get a deed form that’s valid in your state. If you’ve been working with a lawyer, the lawyer will probably prepare the deed; if not, you can find forms online, at office supply stores, or at title companies.
Information on the Deed
You’ll need to supply certain information on the deed:
The fact that the transfer is not a sale. This is to show that no transfer tax (based on the price paid when real estate is sold) will be due.
How the new owner(s) want to take title. If more than one person is inheriting the property, they’ll have to decide how they want to hold title. The options depend on state law: joint tenancy, community property or tenancy by the entirety (for married couples only), and tenancy in common are the most common. Each has advantages and drawbacks.
You sign the deed, in your capacity as trustee: for example, “John C. Sutcliffe, trustee of the Anthony Ramirez Living Trust dated January 23, 2008.”
If money is still owed on the real estate, the debt goes with the property unless the trust explicitly directs that mortgages and other encumbrances (property tax, for example) be paid with trust assets before the real estate is transferred out of the trust. In the usual case, where the debt stays with the property, the new owner will need to talk to the mortgage-holder and see whether the existing mortgage can be assumed or must be refinanced.
Recording the Deed
Once the deed is signed and notarized, it must be filed (recorded) with the local land records office in the county where the real estate is situated. This office is called different things in different states: the county recorder, register of deeds, or some similar name. There’s a small fee ($10 to $20 is typical) for recording; you can call (or check the county’s website) and find out the exact amount before you take the deed in.
Other Documents the New Owner May Need to File
In some states, you must file other documents when you record a deed. In California, for example, many real estate transfers trigger a reassessment of the property for property tax purposes. But transfers from parent to child (and other intra-family transfers) are exempt from the reassessment. All this is stated on a form called a preliminary Change of Ownership Report, which must be filed along with the deed.