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Posted: 11/6/2009 8:52:33 AM EDT
| I need to go finish my forms at my dealer for my suppressor and I have yet to finalize my Trust. I have it made by a lawyer and just need to sign it and have my 2nd trustee sign it. My question is do I need both a witness and notary present when we sign it? Can I just sign it and then take it to get notarized? Thanks |
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Quoted:
trustees don't even have to sign. Only the grantor (settelor) has to sign. That is interesting as I know you are a lawyer and not some random person expressing an uneducated opinion. The lawyer who did my NFA trust did have my trustees sign. I do not recall if he specifically said they HAD to sign, but there were spots for them to sign and it was my impression that they had to sign. I believe the original poster lives in Georgia as I do and it is possible we used the same lawyer. Perhaps it is a requirement in Georgia as revocable trusts are dictated by the state. I guess it is possible that some states could require a witness in addition to a notary as anything is possible, but the state of Georgia does not require a witness, only a notary. The one thing I did ask that no one seemed to be able to answer is if I could have the trustees sign at different times using two or more different notaries. I had trustees that live in different parts of the state several hours apart. I was going to separate the signature page into two or three pages and have three different sittings with three different notaries. A small miracle occured and I was able to get them all in one place so it ended up not mattering. Of course now you tell me that I might not have had to have all them sign anyway. |
| In Texas trustees don't HAVE to sign. A lot of lawyers put places for them to sign on standard trust (as opposed to NFA trust) as a showing that the trustee is willing to take on the obligations and duties of being a trustee. I think a lot of lawyers (and maybe quicken) just carry over their forms for normal trusts. NFA trusts are different b/c in large part listing someone as a trustee is solely to allow them to possess the NFA item and they don't have other real duties. If you have a Texas statue that says they are required I would love to see it. See Texas prop code 112.009 which says it is proof they they accepted the duty but is not required (but also says they can sign another document as proof they accepted the duties....or don't have to sign anything...they can just do it). The requirements are in 112.001 and don't say anything about requiring trustees signature (or notarization or witnesses). |
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Also here is the Gorgia law. Trustees aren't required to sign and even if they do sign no notary is required:
§ 53-12-20. Express trusts (a) An express trust shall be created or declared in writing. (b) An express trust shall have each of the following elements, ascertainable with reasonable certainty: (1) An intention by a settlor to create a trust; (2) Trust property; (3) A beneficiary; (4) A trustee; and (5) Active duties imposed on the trustee, which duties may be specified in the writing or implied by law. Also 51-12-21 says: "No formal words are necessary to create an express trust." |
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If no notary is required to create a trust why would a notary be required to amend a trust? Joshuap, endorsed by the moderator, (see valuable links at the top of the forum) claims:
Quoted:
For the purposes of my response, I will assume that we are talking about a revocable trust. 1. As has been stated, a trust can be amended, but requires notarization, which would allow a trustee to be added or removed. 2. Yes it is possible, but it will require additional provisions tailored to one's wants/desires, so it is likely to be more expensive 3. I am not sure I understand the question. Most trusts have provisions that if the grantor become incapacitated, either the trust assets are to be doled out or that someone else takes over. If you die, the trust becomes irrevocable and there is no amending it. If you are simply asking about informing the trustee(s) how to carry out your wishes, a properly drafted NFA trust would give them that information. More importantly and to which few consider, if you AND your trustee(s) die together, the court will appoint someone as trustee because a trust will not fail for want of a trustee. However, that individual is unlikely to know anything about NFA, so it is very important that your trust spell everything out. 4. Only the trustee may possess a trust asset. 5. It depends on your state's laws. Usually they are grandfathered, but that isn't written in stone. It may also depend on what the trust changes are and whether or not the trust purchases new assets after the state law changes and/or whether you amend the trust after the state law changes. 6. Marriage isn't really important in regards to trusts, except for the fact that your spouse may have a right to up to 1/3rd the value of your trust if she elects to take an elective share. A spouse can be added as a trustee, life beneficiary, or beneficiary, depending on your desires. However, once a trust is formed and acquires NFA firearms, you CANNOT amend the trust name because that name is how the NFRTR reflects the current ownership. Even in discussions with the NFA branch regarding an individual who owns NFA prior to marriage and whose name changes after marriage, the BATFE is fine with the Form 1/4 staying in the surname. However, if the individual wants to change the forms to show his/her new last name, the BATFE is requiring a full transfer, including the $5/$200 tax. Thus, if you decide your trust name is too long to abbreviate or you want a different trust name, either ask for a marking variance or form a new trust with a shorter name for those firearms that you desire to make. http://www.ar15.com/forums/topic.html?b=6&f=17&t=288541&page=1 Surely Joshuap can't be wrong about basic black letter law? |
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Quoted:
Since some states still recognize "oral" trusts, making a general claim that a notary is "required" either to amend or create a trust is an inaccurate statement of general trust law. That is right. Texas still allows oral trusts. Also just b/c lots of people do it, doesn't mean it is required. |
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BTW, you don't actually have to sign before the notary. Not that this is a big deal, but you just have to appear in person before the notary and acknowledge the signature as yours before they notarize it, even if you signed it outside the presence of the notary. I speak only of Texas b/c that's all I know. Lots of myths about acknowledgements, usually propogated by ill informed title companies that say things like "you have to sign your entire name," which bullshit. An "X" will suffice if that is the way you sign your name.
Notaries typically do two things with documents: Some documents are "acknolwedged" which means the notary verifies the signatory's' identity and attests to it, typically to avoid the necessity of having to authenticate the signature with a live witness if the document ever needs to be put in evidence. In some cases, having a document signed by two non-notary witnesses can accomplish the same thing. Also, acknolwedgement is usually a requirement to record instruments in real property records. Other documents are "sworn," which means the signatory is attesting to the truth of the matters in the document –– an affidavit for example. Two different notary statements are used, in the former it is an acknowledgement in the latter it is a "jurat". An acknowledgement is just verification of identity basically and a jurat is an oath. For purposes of a trust or legal instrument, an acknowledgment, not a jurat, is appropriate. In fact, it used to be the case that if you mistakenly used a jurat in place of an acknowledgement where one was required, you were in trouble. Lots of liens in the old days were invalidated because someone stuck the wrong notary statement at the end. |
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