Sec. 2.2. Formation
A. The Items of Information in the Certificate of Trust.
The items of information which the certificate of trust must set forth in order to be for the appropriate government authority to accept it for filing are minimal. Certain formalities which the state used to require such as that a minimum of three trustees must sign the certificate of trust and that their signatures must be notarized have been eliminated. The certificate of trust must state:
1. Name.
(a)
The name can be a fanciful name or the proper name(s) of the trustee or the beneficiary. The name cannot be so similar to the name of any other business entity which is on file with the state. The name of the statutory business trust must be sufficiently different so that the public is not confused or deceived as to the identity of the statutory business trust.
(b)
The fact that the state accepts the certificate of trust with the name does not protect the name under the trade/service mark law. If the principals seek such protection, they must apply to the US Patent and Trademark Office (USPTO) to register the name under the procedures of the USPTO.
(c)
The name need not contain a suffix which identifies the statutory business trust as a statutory business trust. It may contain suffixes such as “company” or “association”. It cannot contain a suffix which identifies another form of business entity such as “corporation” or “LLC”.
2. Principal or Business Address.
The second item is the street address, city, state and zip of a business address. The address can be located anywhere in the world. The statutory business trust need not conduct its business in or from the address. The address cannot be a post office box.
The third item is the appointment and identity of a registered agent and the designation of a street address, city, state and zip for the registered agent in the state.
(a)
The registered agent can be a company whose business is to serve as a registered agent, a private person, the trustee or the beneficiary, each of whom must be a resident of the state.
(b)
The primary function of the registered agent is to receive service of process or government notices and deliver them to the statutory business trust.
If the statutory business trust is to have series of trust interests, the certificate of trust must state that fact as follows:
The statutory business trust is authorized to create series of trust interests.
(a)
The debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to a series shall be enforceable against the assets of such series only, and not against the assets of the limited liability company generally or any other series.
(b)
Unless otherwise provided in the trust instrument, none of the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to the statutory business trust generally or any other series shall be enforceable against the assets of such series.
(c)
The series of trust interests may be either a protected series or a registered series.
The principals may insert other information in the certificate of trust which they so choose. Such information may include management protocols, allocations of duties, succession or governance. Because the certificate of trust is a public document the principals should consider whether such information is necessary or proper. If any item of information conflicts with or contradicts with any provision of the trust instrument the items in the certificate of trust prevail.
The certificate of trust must be signed by a principal or another individual who is authorized by the principals to sign and file the certificate of trust.
The states still allow principals to file paper originals of the certificate of trust. Using relevant technology, many states enable filers to file the certificate of trust by electronic means.
The states charge a filing fee to file the certificate. They also charge a franchise fee which the statutory business trust must pay on an annual or biennial basis. If the statutory business trust does not pay the fee when due, the state can dissolve it as an administrative matter. After such dissolution the statutory business trust can be reinstated by paying the delinquent fees and penalties.
The principals may in their discretion amend or restate information in the certificate of trust at any time. The procedure for filing an amendment and restatement is essentially the same as the procedure for filing the certificate of trust.
An amendment can be as simple or detailed as the principals so choose. It can add to, replace or remove any item in the certificate of trust. Usually, a certificate of trust is amended to reflect circumstances which have changed since the certificate of trust was filed such as a name change, appointment of a new registered agent or changes in other items. The certificate of amendment must:
(a)
State that it is an amendment of the certificate of trust in the caption,
(b)
The name of the statutory business trust exactly as it is in the certificate of trust,
(c)
The date on which the certificate of trust was filed,
(d)
The text of the amendment(s). If there are more than one amendment the amendments should be set forth in separate numbered paragraphs.
A restatement is a more comprehensive document than an amendment. A restatement is filed when there have been so many amendments made at different times that the certificate of trust becomes confusing and unwieldy. It is also filed when fundamentally new or different circumstances have arisen and the principals desire to reflect these circumstances in the certificate of trust.
The only formal requirement is that, in addition to the information in the certificate of trust, the caption state that it is a restatement.