The Title Holding Trust template is designed for situations where a trust is used solely to hold title to specific real estate while the client’s primary dispositive planning remains in their will or revocable trust.
This is an independent trust template, meaning it is not automatically included in any estate planning package. It is available in the Library > Other Trusts. Although the template stands alone, it may be drafted within an existing client matter. When used this way, the system will pre-populate available client data from the estate planning package, promoting consistency and reducing duplicate entry.
The Title Holding Trust is appropriate for both:
- Married clients (joint settlors), and
- Individual clients (single settlor).
Purpose and Structure of the Trust
A Title Holding Trust is structured to hold a specific parcel of real property. It is administrative in nature and is not intended to serve as the client’s primary dispositive instrument.
The trust:
- Holds legal title to the identified property.
- Allows the settlor(s) to retain full lifetime control and use.
- Coordinates distribution at death through the client’s primary estate planning documents.
The information entered in the drafting interview determines how the trust integrates with the broader estate plan.
Naming and Continuity
The trust name entered in the interview appears throughout the document and will be used in any deed transferring property into the trust.
If the document is marked as an amendment and restatement, the newly generated trust formally replaces a prior version while preserving continuity of the original trust relationship.
Coordination with the Client’s Estate Plan
The interview requires you to identify the client’s primary estate planning structure:
- Will-based plan
- Separate revocable trusts
- Joint revocable trust
This selection controls how the Title Holding Trust distributes at death.
For Married Clients
- At the first death, the trust continues for the benefit of the surviving settlor.
- The surviving settlor retains full rights of use, control, amendment, and revocation.
- At the surviving settlor’s death, the survivor holds a testamentary general power of appointment over the trust property.
- The survivor may direct the property through their will or revocable trust.
- If the power is not exercised, the trust distributes according to the survivor’s residuary estate plan.
- If that primary estate plan has been revoked, the trust defaults to the residuary provisions in effect when the Title Holding Trust was created.
For Individual Clients
- The settlor retains full control during lifetime.
- At death, the property passes according to the dispositive provisions identified in the primary estate planning document selected in the interview.
This structure ensures that the Title Holding Trust remains fully integrated with the client’s broader estate planning framework.
Property Identification and Characterization
The interview requires entry of the property’s legal description, situs (state), and other identifying details. This information becomes part of the operative trust language and must be accurate.
The template also includes an option to clarify that real property transferred into the trust is intended to be community property. Even though Oregon is not a community property state, since it is surrounded by community property states, Agile EP includes options to maintain transitory community property.
Trustee Structure and Authority
For married clients, both settlors serve as co-trustees while living and competent. Each may act independently to the extent permitted under applicable state marital property law. If one settlor cannot serve, the other serves alone. If neither can serve, the named successor trustee assumes authority.
For individual clients, the settlor serves as trustee during lifetime, with successor trustees stepping in upon incapacity or death.
Lifetime Rights and Flexibility
The Title Holding Trust preserves broad lifetime flexibility. During lifetime, the tsettlor(s) retain:
- Full control over use and enjoyment of the property
- Rent-free use
- Responsibility for taxes, maintenance, and expenses
- Authority to remodel, repair, or improve the property
They may amend or revoke the trust and may add or remove property as permitted by applicable law. If a settlor becomes incapacitated, a properly authorized agent under a durable power of attorney may exercise amendment or revocation rights on their behalf.
Estate Tax Coordination
The Title Holding Trust does not directly pay debts, expenses, or estate taxes. Those responsibilities remain with:
- The revocable trust (if applicable), and/or
- The Personal Representative of the estate
However, because the trust structure grants a beneficiary a testamentary general power of appointment over the trust property, that property will be included in that beneficiary’s gross estate under IRC §2041.
Under the default Agile Estate Planning tax structure:
Debts and expenses are generally paid from the residue of the revocable trust or estate.
Property included in the gross estate under IRC §§2036, 2038, 2041, or 2042 must bear the tax attributable to that inclusion.
Accordingly, if §2041 inclusion applies to Title Holding Trust property, the estate tax attributable to that inclusion must be charged to — and if necessary recovered from — the assets of the Title Holding Trust.
This requires coordination among:
The trustee of the Title Holding Trust
The trustee of any revocable trust
Any Personal Representative
For additional detail on the default taxes and expense provisions, review this article.
You should confirm whether the client intends for estate taxes and expenses attributable to the Title Holding Trust property to be allocated in this manner, and, if not, revise the Title Holding Trust and/or the client’s Will or Revocable Trust to ensure the tax and expense provisions reflect the client’s specific intent.Document Execution and Formatting
The drafting interview also controls execution and formatting details, including:
- State-specific notary block
- Referenced attorney
- Notary selection
- Footer and page numbering preferences
If attorney or notary information does not appear in the dropdown, it must first be entered in Firm Information.