Turns out, everyone! Everyone who records a trustee’s deed, anyway.
For any transfer of real property from a trust, Iowa requires a recorded trustee’s affidavit under Iowa Code § 614.14, to be recorded and delivered to the purchaser alongside the trustee’s deed that conveys the property.
A trust involves three parties. The trust is created by a settlor, who executes a trust instrument establishing the terms of the trust and funds the trust with assets. The trustee is the person(s) designated under a trust instrument as the fiduciary responsible for administering the trust. The trustee manages the trust to the benefit of the beneficiaries named in the trust instrument. A beneficiary is “a person who has any present or future interest in the trust, vested or contingent” (Iowa Code § 33A.1102(2)).
Depending on the trust, the trustee is either an individual or a corporate representative. When completing the affidavit, the trustee should use whichever version more correctly describes their role: individual or corporate. In some cases, a settlor may divide trustee duties between an individual trustee and a corporate trustee.
An individual trustee is someone appointed by the trust’s settlor to administer the trust, and is usually personally known to the settlor. The term “individual trustee” encompasses both singular trustees and co-trustees. The trust instrument sets out the established terms of the trust, including the trustee designation and powers.
A corporate trustee is an outside party, usually a bank or trust company. The corporate trustee assigns an officer to administer the trust; this person is not necessarily personally known to the settlor.
The individual trustee is the affiant making the sworn statements contained in the affidavit of individual trustee. The trustee declares the date of the trust on behalf of which he is acting and references the deed conveying the property into the trust, including the grantor (settlor) of that deed and where it can be found on record. In addition, the affidavit confirms the trustee’s power to conduct the transfer at hand, and states that the relevant parties to the trust are alive and competent to authorize the transfer.
In an affidavit of corporate trustee, an authorized officer of the corporate trustee executes the document as the affiant. The affidavit also includes other information specific to the transfer.
Both affidavits require a legal description of the real property subject to the transfer and signatures by the affiants made in the presence of a notary public or other official authorized to acknowledge documents relating to real property. The affidavit is recorded in the county in which the real property is located.
Iowa has certain statutory requirements for recording documents affecting real property, all of which are met by completing a recorder’s cover page. Generally, the trustee’s deed and affidavit are recorded together. If not, the affidavit might require a recorder’s cover page to meet Iowa’s statutory requirements.
Once recorded and delivered to the grantee, an affidavit of trustee ensures that the “bona fide purchaser is a purchaser for value in good faith and without notice of any adverse claim” on the property (Iowa Code § 614.14(2)).
Some situations may require a purchaser’s affidavit be recorded alongside the trustee’s affidavit. The purchaser’s affidavit is executed by the purchaser of the trust property (the grantee of a trustee’s deed) and recorded in the county in which the real property is situated. This affidavit states that the purchaser has relied upon the affidavit of trustee, and, as such, has no knowledge of any adverse claims arising out of the execution and recording of the trustee’s deed.
After a trustee’s deed and all necessary affidavits are recorded, the grantee “acquires all right in the real estate which the trustee and the beneficiary of the trust had and any rights of persons claiming by, through or under them, free of any adverse claim” (614.14(1)).
Because each situation is different, consult a lawyer for guidance on transfers from trusts in the State of Iowa.