If you've ever wondered whether one spouse can legally sign a deed transferring property that's held in a living trust, you're not alone. This is one of the more nuanced yet frequently asked questions in California estate and real estate law. The answer, as you might expect, depends on the specific language in the trust, the title of the property, and adherence to legal formalities.

Let's break it down in a way that's straightforward, practical, and backed by California law—with examples, risk insights, legal code, FAQs, and internal links included.

Understanding the Basics: Co-Trustees and Authority

In California, many married couples create revocable living trusts to hold title to their homes and avoid probate. It's common for both spouses to be named co-trustees of the trust.

Under California Probate Code §16013, unless the trust specifically states otherwise, co-trustees must act unanimously. This means that if the trust doesn't say one trustee can act alone, then both must sign for any action to be valid—including the transfer of real estate.

Example #1: Trust With Independent Trustee Authority

Let's say Paul and Linda are co-trustees of their family trust. The trust instrument reads:

"Each Trustee may act independently of the other, and any act taken by one Trustee shall be binding upon the Trust."

This means Linda could legally sign a deed transferring their Newport Beach home out of the trust without Paul's signature—as long as that act is within the trust's purpose and scope.

To execute the transfer correctly, Linda would sign the deed in her trustee capacity with proper authority language.

Citing the Code: California Civil Code §18100.5

To prevent delays or objections from title companies or county recorders, we always recommend including a recital of authority per Civil Code §18100.5, which allows the acting trustee to affirm their right to act alone.

This can appear directly in the deed or as a supporting statement:

“The undersigned is the acting trustee of the trust and is authorized to act alone pursuant to the terms of the trust.”

This simple sentence can be the difference between a deed being recorded smoothly or getting rejected.

Example #2: Trust Silent on Independent Action

Now let's look at David and Marissa. They created a trust years ago using an online form, and the trust doesn't say anything about whether a co-trustee can act alone.

David tries to sell a vacation property titled in the trust's name while Marissa is overseas. The title company refuses to close because both trustee signatures are required. Under Probate Code §16013, silence means unanimity.

They either need to amend the trust or wait until Marissa returns.

Emergency Scenarios: Capacity & Timing Challenges

In real life, emergencies happen. One of our clients was co-trustee of a trust with her spouse who had a sudden stroke. She needed to refinance their home quickly to pay for in-home medical care.

Fortunately, their trust allowed independent trustee action. We were able to prepare a deed with the correct language and close in less than a week.

In contrast, another couple had a trust that didn't allow unilateral action, and by the time both trustees could act together, the opportunity was lost.

Best Practices for Signing and Recording

If only one spouse is signing on behalf of the trust, make sure the following steps are followed:

1. Verify the trust allows independent action
2. Sign with title authority:
• "Jane Doe, as Trustee of the Doe Family Trust dated July 15, 2012"
3. Include Civil Code §18100.5 recital in the deed
4. Notarize the deed
5. Submit a Preliminary Change of Ownership Report (PCOR)
6. Record at the proper county office

What If the Trustee Is Elderly?

When the acting trustee is over age 78, we may require a brief statement from their attending physician confirming they have the mental capacity to engage in legal transactions. This is a best practice to guard against future claims of undue influence or incapacity.

There have been high-profile cases in California where firms were sued for preparing documents on behalf of elderly clients without confirming capacity. A physician's letter can offer essential protection for the client, their family, and the attorney.

Case Law Reference: Whittlesey v. Aiello (2002)

In Whittlesey v. Aiello, 104 Cal.App.4th 1221 (2002), the court reinforced the importance of trustee authority when property is transferred out of a trust. The court ruled that a trust's specific language governs whether a single trustee can act unilaterally.

The takeaway? If you want one trustee to be able to act alone—say so clearly in the trust document.

Why Title Companies May Push Back

Even when the trust includes independent trustee provisions, some title companies require both signatures as a matter of policy. That's why including the recital of authority and offering a Certificate of Trust can go a long way toward smoothing the transaction.

Internal Resources You May Also Like:

• Avoid Costly Mistakes: Essential Estate Planning Tips You Need to Know (Aliso Viejo & Orange County Edition)
• Secure Your Family's Future: Estate Planning Made Simple in Laguna Niguel, California
• Living Trust vs. Legacy Protection Trust: Which One's Right for You?

Frequently Asked Questions

Q1: Can one co-trustee sign a deed without the other in California?
A: Yes, if the trust document explicitly allows one trustee to act independently. Otherwise, both co-trustees must sign.

Q2: What is a recital of authority, and is it necessary?
A: A recital of authority is a statement within the deed affirming the trustee's power to act alone, as permitted by the trust. While not mandatory, it helps prevent delays or objections during the recording process.

Q3: Does the age of the trustee affect the signing process?
A: While age alone doesn't restrict signing, for trustees over 78, it's prudent to obtain a physician's statement confirming mental capacity to mitigate potential legal challenges.

Q4: What steps should I follow to ensure a valid deed transfer from a trust?
A: Ensure the trust permits independent action, include a recital of authority, have the deed notarized, submit a Preliminary Change of Ownership Report (PCOR), and record the deed with the appropriate county office.

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Final Word: Review Your Trust Language Today

Spousal co-trusteeships are common, but they don't automatically mean one spouse can sign for the other. You need clear, written authority in your trust document.

So, if you're buying, selling, or refinancing a home in a trust—or just planning ahead—take time to review this clause in your trust. The stakes are too high to assume, especially when timing and legal certainty matter.

If you're unsure about your current trust provisions or need help preparing or executing a deed, we're here to help.

James G. Burns, Esq.
Law Offices of James Burns
www.jamesburnslaw.com
(949) 305-8642

Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. For personalized guidance, please consult with a qualified attorney.