Expert: Matt Heisler - 9/30/2007

Question
Hello,

I read about experience and it seems you may be able to know the answer to this question.

My husband and I will be purchasing a house soon and we'd like to purchase it (no mortgage) through a Declaration of Nominee Trust with my mother as Trustee. Our main goal is privacy (versus probate avoidance). Her name as Trustee will show up in public records and not ours which is what want.

However, one small problem. My mother lives in Scotland and the title company said it could be a hassle for signing purposes. What would be the best way to have my mother (Trustee) authorize anyone else to sign for her on the house purchase papers/deeed?

I think I already know of some option but I don't know which would be simplest:

1. Add clause to Nominee Trust Agreement that a substitute trustee can be selected by beneficiaries (husband/me) when we are in the U.S.?
2. Have mother sign a Durable Power of Attorney?
3. Have a Managing trustee designation form or trustee appointment form?

I suppose I just want your opinion as to how you would handle it and what would be the easiest for us when it comes time to sign the house purchase/closing documents?

Thank you for your assistance.
Maria

Answer
Maria:

This is really a legal question, and not a real estate one.  I have seen many, many properties that are owned by trusts, and the trustees are not stated on the deed.  In order to do this, I'm pretty sure you need to have a legal entity created, both for tax and ownership purposes.  I think a limited durable power of attorney would be the easiest thing to do, but I know from my limited experience doing international paperwork that you'd want to make sure that you know the process.  In the U.S., any attorney or notary can authorize a durable power of attorney, but I'm not sure which entity would be authorized to do that in Scotland (I doubt that a Scottish attorney can verify a document that needs to be used in the U.S.)  You'll probably have to have a local document "internationalized" by the State department of the host country, and then authorized by the appropriate state agency here - and then find an attorney who's OK with all of that.  My guess is that no matter which way you do it, you'll have to deal with something like that.  (If your trust is already established, I suspect you can't change it without the trustee making the change in writing, and you're stuck with the same problem).

Again, it's really a legal question, and I'm sure a good attorney with exposure to authenticated international/overseas documents will be able to best assist you.  

Matt Heisler