H. B. 4312
(By Mr. Speaker, Mr. Kiss, and Delegates
Jenkins, Staton, Varner, Trump and Dalton)
[Introduced February 9, 1998; referred to the
Committee on the Judiciary.]
A BILL to amend article one, chapter thirty-six of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
four-a, relating to the recording of a memorandum of trust
with the clerk of the county commission; and specifying
requirements for the memorandum of trust.
Be it enacted by the Legislature of West Virginia:
That article one, chapter thirty-six of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
four-a, to read as follows:
ARTICLE 1. CREATION OF ESTATES GENERALLY.
§36-1-4a. Memorandum of trust; requirements; recordation.
(a) The memorandum of trust that satisfies both of the
following requirements may be presented for recordation in the office of the clerk of the county commission of any county in
which real property that is subject to the trust is located;
(1) The memorandum shall be executed by the currently acting
trustee or trustees of the trust, and, if living, by the settlor
or settlors, personally, or by a duly appointed attorney-in-fact
or conservator, and shall be acknowledged in the manner to
entitle a deed to be recorded.
(2) A memorandum of trust thus entitled to be recorded shall
contain at least the following information with respect to the
trust:
(i) The existence of the trust and the date of the trust;
(ii) The names and mailing addresses of the settlor or
settlors and of the currently acting trustee or trustees of the
trust and the identity of any successor trustee or trustees and
the circumstances under which any successor trustee or trustees
will assume trust powers;
(iii) The revocability or irrevocability of the trust; and
(iv) A verbatim recitation of the trust powers specified in
the trust relative to the acquisition, sale, disposition, or
encumbering of real property by the trustee or trustees or the
conveyance or disposition of real property by the trustee or
trustees, and any restrictions upon those powers, or a statement
that the trust powers include at least all those trust powers contained in section three, article five-a, chapter forty-four of
this code as they existed at the date of the execution of trust.
(b) A memorandum of trust may also set forth the substance
or actual text of any or all of the provisions of the trust.
(c) A memorandum of trust that satisfies the provisions of
this section constitutes notice only of the information contained
therein.
(d) Upon the presentation of a memorandum of trust that
satisfies the provisions of this section and the payment of the
requisite fee, the clerk shall record the memorandum of trust
with the records of deeds and list it in the grantor index under
the settlor or settlors' name and in the grantee index under the
then-acting trustee or trustees' name.
(e) Nothing herein shall be construed or deemed to require
recordation of any original trust agreement or other governing
instrument which establishes the trust identified in the
memorandum of trust.
NOTE: The purpose of this bill is to permit the settlor or
the trustees of a trust to record a memorandum of trust with the
clerk of the county commission in the county where real property that is subject to the trust is located, in order to provide
notice of the information contained in the memorandum of trust,
particularly notice of any trust powers regarding real property.
This should eliminate need of a trustee to furnish or record the
dispositive provisions of a trust or the entire trust agreement
in order to evidence trust powers regarding real property.
This section is new; therefore, strike-throughs and
underscoring have been omitted.
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