Legal Question in Real Estate Law in California

Re: Creating a note & deed of trust

No trustee, no trust, no deed of trust. You better have somebody who knows what they are doing look at your documents, or else in a few years you could find yourself among the do-it-yourselfers who have neither their money nor an interest in real estate, and who have come to LawGuru to whine about it.

Re: Creating a note & deed of trust

The trustee under a deed of trust is not a true trustee and neither the deed of trust nor the trustee is subject to the general rules governing trusts. I certainly do not recommend or suggest writing up and using a deed of trust that leaves the name of the trustee blank, but on the other hand, if it happened, I don't believe the omission would invalidate the deed of trust as an enforceable security instrument. The beneficiary could simply "substitute" someone as trustee when the need to reconvey or foreclose arose.

In practice, parties frequently just stick in the name of any old trust company, with or without their knowledge or permission. Deed of trust forms provided by trust companies usually have their own name pre-printed as trustee. Later on, the party the beneficiary chooses can be substituted as trustee, if the beneficiary so desires or the trust company originally named doesn't want to act on the beneficiary's behalf.

In addition, there are cases holding that the beneficary can be its own trustee, or have one of its employees as trustee. This is discouraged because there could in some circumstances be conflicts between the roles.