Balance privacy when recording a trust

Natalia Vander Laan

Natalia Vander Laan

Estate planning documents are generally private. One of the benefits of creating a trust is the fact that it remains inaccessible to others until at least the incapacity of the grantor, oftentimes even the death of the grantor. Only very few of the documents constituting an estate plan have to be made available to the public by recording or filing them.

It is an individual’s choice whether to record the trust or not. Some Nevada counties, like Clark County, will accept the trust for filing, but the filing or recording is not a perquisite to the existence of a valid trust. In fact, most people choose not to record their trust. This is because one of the main advantages of the trust is its privacy. If the trust document is recorded, one’s children and other interested parties would have access to it and could lobby the grantor to change the trust’s provisions. However, if the trust document is recorded, then it is safekept at the county office. Sometimes, the peace of mind offered by having a copy of the document safely stored outweighs the privacy concerns. But a copy of the trust can always be provided for safekeeping to the trustee or another trusted person. Furthermore, a copy is often stored at the attorney’s office.

Similarly, the certificate of trust, which is an affidavit signed by all currently acting trustees of the trust that attests to the trust’s existence, also is generally not recorded in Nevada. Furthermore, the certificate of trust does not contain information about the trust terms, thus recording it without the actual trust would be useless.

Generally, Nevada Statutory Power of Attorney, commonly known as the financial or property power of attorney, does not need to be recorded. However, if the principal initialed “real property,” thus giving the agent the power to handle real estate matters and the agent will use the power of attorney for real estate transactions, said power of attorney should be recorded at the recorder’s office in the county or counties where the real property is located. Once the power of attorney is recorded, the recorder’s office will recognize the agent’s authority if the agent conducts any real estate transactions related to the real property on the principal’s behalf.

Consequently, the property power of attorney should be prepared in a format that is suitable for recording. Nevada Revised Statutes provide the general requirements for recorded documents. Additionally, the county recorder may have additional recording requirements specific to each county.

Due to the fact that Nevada law requires all power of attorney documents that allow real estate transactions to be recorded, the notice of revocation should also be recorded with the same county recorder’s office. While the new document typically contains the language revoking any prior documents, the revocation is not effective until it is recorded.

There are two documents in the estate plan that should always be recorded: the deed transferring the real property to trust and the declaration of homestead. The deed, while valid upon execution, is only valid between the parties to the transfer until it is recorded. Recording the deed is intended to provide notice to third parties. Similarly to the property powers of attorney, the deed and homestead declaration must meet the recording requirements established by Nevada Revised Statutes and the local recorder’s office.

Natalia Vander Laan is a Minden attorney.



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