What Is a Certification of Trust? A Guide for Delaware Trustees
A certification of trust is a document that allows a trustee to provide key information about a trust without providing the entire trust agreement. In Delaware, a certification of trust can be particularly useful when a trustee needs to demonstrate their authority to act on behalf of a trust while keeping the trust’s private distribution provisions confidential.
What Is a Certification of Trust?
Under 12 Del. C. § 3591, a trustee may provide a certification of trust to a person other than a beneficiary instead of providing that person with a complete copy of the trust instrument.[1]
A Delaware certification of trust can confirm important information, including:
The existence of the trust and the date it was created
The identity of the trustor or trustors
The identity of the current trustee or trustees
The powers granted to the trustee
Whether the trust is revocable or irrevocable
Whether one or all co-trustees must sign
The trust’s taxpayer identification number
How title to trust property should be held
Importantly, a certification of trust does not have to include the trust’s dispositive provisions—the provisions that determine how the trust assets are ultimately distributed.
How Is a Certification of Trust Used in Delaware?
A certification of trust can be used when a trustee needs to establish their authority in connection with a transaction involving trust property.
For example, a trustee may be asked to provide documentation when opening a bank or investment account, purchasing or selling real estate, transferring property, or entering into another transaction on behalf of the trust. Rather than providing the entire trust agreement, the trustee may be able to provide a certification of trust containing the information relevant to the transaction.
Delaware law also provides protections for people who rely in good faith on a certification of trust. A person who acts in reliance on the certification without knowing that its representations are incorrect may generally rely on the facts stated in the certification without independently investigating the trust.
Does a Certification of Trust Replace the Trust Agreement?
No. A certification of trust is not a replacement for the trust agreement. Instead, it is a way of providing selected information about the trust and the trustee’s authority.
A person receiving a certification may, in certain circumstances, request excerpts from the trust instrument or later amendments that identify the trustee and establish the trustee’s authority to conduct the particular transaction. Delaware law also addresses requests for the complete trust instrument and provides protections when such requests are not made in good faith.
Why Use a Certification of Trust in Delaware?
For Delaware trustees and trust beneficiaries, a certification of trust can provide a practical balance between demonstrating authority and protecting privacy. It allows a trustee to provide relevant information to a bank, financial institution, title company, purchaser, or other party without automatically disclosing the trust’s private distribution provisions.
Because the certification must accurately reflect the trust as it currently exists, trustees should make sure it is consistent with the trust agreement and any subsequent amendments.
Do you need a Delaware Certification of Trust?
Whether you are creating a trust, serving as a trustee, or administering trust property, understanding when and how to use a certification of trust can help make trust administration more efficient.
If you have questions about a certification of trust in Delaware, or need assistance preparing or reviewing one, contact Maven Law to schedule a consultation. Our attorneys can help you understand your options and determine the appropriate steps for your particular situation.
Call Maven Law today to schedule a consultation and discuss your Delaware trust needs.
[1] https://delcode.delaware.gov/title12/c035/sc07/index.html#3591
