Chapter 4 - § 4.26 • TRUSTS AND TRUSTEES

• Jurisdiction: Colorado

§ 4.26 • TRUSTS AND TRUSTEES

§ 4.26.1—Power to Acquire and Hold Real Property

Acquisition by Trust

In the absence of statute, a trust is not an entity capable of holding title to real property.⁴¹⁸ On and after June 1, 1977 and through August 7, 2001, a trust could acquire real property in Colorado in the name of the trust upon complying with the provisions of C.R.S. § 38-30-166(2), which provided that any trustee may record with the clerk and recorder of the county in which the property is located an affidavit setting forth the name of the trust and the names and addresses of all the trustees.⁴¹⁹ On and after August 8, 2001, a trust may acquire any interest in real or personal property in the name of the trust.⁴²⁰

Acquisition by Trustee

Whether a trustee has the power to acquire and hold real property depends upon the character of the trustee in general; that is, whether the trustee is a person otherwise having the power to acquire and hold real property.⁴²¹ If an instrument in which the grantee is described as trustee, etc., does not name the beneficiary and identify the trust or other agreement under which the grantee is acting, the description of the grantee as trustee, etc., is considered a description of the person only and not notice of a trust or other representative capacity of the grantee.⁴²² But this provision does not render trust property available to satisfy a personal judgment against a trustee when creditors placed no reliance on the nonconforming deed in extending credit.⁴²³

§ 4.26.2—Power to Convey Real Property

Conveyance by Trust (June 1, 1977 to August 7, 2001)

Under the act effective June 1, 1977, title to property held in the name of a trust could have been conveyed by any one of the trustees named in the affidavit, or such greater number of trustees as may have been required by the terms of the affidavit, or any other person, officer, or entity specifically named or designated in the affidavit for such purpose.⁴²⁴ Effective May 14, 1992, the recorded affidavit could have set forth a statement that fewer than all of the trustees were authorized to act on behalf of the trust. If such statement were included, the affidavit must have designated the trustees or the manner of designating the trustees so authorized, could have expressed such limitations upon the authority of such trustees as may have existed, and must have been executed by all of the trustees named in the affidavit.⁴²⁵ If the affidavit set forth such a statement, the trustees designated in the statement, or designated in the manner provided in the statement, could have acted in accordance with the statement with respect to the property.⁴²⁶ Upon recording, the affidavit constituted prima facie evidence of the authority of the trustees who were thereby empowered to convey on behalf of the trust.⁴²⁷

Conveyance by Trust (on and after August 8, 2001)

On and after August 8, 2001, a trust may convey, encumber, lease, or otherwise deal with any interest in real or personal property in the name of the trust.⁴²⁸ In order to evidence the existence of a trust and the authority of one or more trustees to act on behalf of the trust with respect to an interest in real property held in the name of the trust, any trustee of the trust may execute and record with the clerk and recorder of the county in which the real property is located a statement of authority pursuant to C.R.S. § 38-30-172(2).⁴²⁹

Conveyance by Trustee (Property Held in Name of Trustee)

Where two or more...