North Carolina Certification of Trust

Codified under the North Carolina Uniform Trust Code, which governs testamentary and non-testamentary trusts, the certification of trust at NCGS 36C-10-1013 is a document verifying a trust's existence and a trustee's authority to act in the transaction for which the certificate is being presented.

A trust is an arrangement whereby a settlor transfers property to another person (the trustee), who holds it for the benefit of a third (the beneficiary). A testamentary trust takes effect upon the settlor's death as specified by his/her will, and a non-testamentary (inter vivos) trust takes effect during the settlor's lifetime, and functions pursuant to the terms established by the settlor in an unrecorded document called the trust instrument.

As the trust's administrator, the trustee handles the trust's assets and sees to the trust's affairs. Upon entering into a transaction involving the trust, a trustee can present a certification of trust to establish his authority to do so. The certificate contains the essential information about the trust that is necessary for the business at hand, allowing the trust instrument (containing the full scope of the trust's assets, the trustee's obligations, and identity of the beneficiary) to remain private.

Any trustee may execute a trust certificate ( 36C-10-1013(b)). In it, the trustee confirms that "the trust has not been revoked, modified, or amended in any manner that would cause the representations contained in the certification of trust to be incorrect" ( 36C-10-1013(c)). Recipients of a trustee's certificate may rely upon the statements contained within the document as correct without further inquiry ( 36C-10-1013(f)).

A certification of trust in North Carolina must state that the trust exists, and provide the date of the trust instrument. Unless withheld under a provision of the trust instrument, the document names each settlor, or person who contributes property to the trust ( 36C-1-103(17)). The certificate identifies the trust as either revocable or irrevocable, and gives the name of anyone holding a power to revoke the trust.

It also includes the name and address of the trust's currently acting trustee, along with a description of the trustee's powers relevant to the transaction for which the certificate is presented. If the trust has multiple trustees, the certificate shows how many trustees are required to exercise trustee powers, and which trustees have the authority to sign documents relating to the trust. It also specifies how trust assets will be titled (usually in the name of the trustee as representative of the trust).

Recipients of a certificate can request excerpts from the trust document designating the trustee and conferring the relevant powers necessary for the pending transaction unto the trustee ( 36C-10-1013(e)). Requesting that the trustee provide the entire trust instrument opens the recipient of a certification of trust up to certain liabilities under 36-10-1013(h). Note that this excludes the right to obtain a copy of the trust instrument in a legal proceeding involving the trust ( 36-10-1013(i)).

The certificate should also include the trust's taxpayer identification number, unless this number is the social security number of a settlor. If the taxpayer ID is rescinded from the document, however, it "shall be certified by the trustee to the person acting in reliance upon the certification of trust in a manner reasonably satisfactory to that person" ( 36C-10-1013(j)).

For transactions involving real property held in trust in North Carolina, the certification should meet all form and content requirements for real estate documents, including a legal description of the property subject to the transaction. The document may be recorded with the register of deeds in the county where the real property is located (36-10-1013(j)).

Talk to a lawyer with any questions regarding trusts and certifications of trust in North Carolina.

(North Carolina COT Package includes form, guidelines, and completed example)

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