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Question:

A client who is a citizen and resident of Brazil, but owns U.S. property would like to create a trust governed by Michigan law and transfer the U.S. property to the trust. The trust will be sent to the client who will sign in Brazil. What are the signing requirements (i.e., must it be witnessed by 2 witnesses, notarized)?

Response:

Assuming the property is in Michigan, this is a matter of Michigan law. In Massachusetts, where I practice, the trust does not need to be witnessed or notarized, but the deed must be notarized. That said, we usually do have trusts notarized for two reasons. First, it makes them look more official. Second, if the trust ever had to recorded at a registry of deeds it would have to have been notarized.

Your inquiry raises the question as to how documents may be notarized outside of the United States. According to the U.S. State Department (https://travel.state.gov/content/travel/en/records-and-authentications/authenticate-your-document/Notarial-Authentication-Services-Consular.html), embassies and consulates offer notary services. Since the Covid pandemic, more and more states are allowing for remote notarization, but this may or may not include overseas notarization.

I searched the internet to see if a notary is required for a trust in Michigan and the answer appears to be yes. But I’m skeptical of that response because I got the same answer searching for Massachusetts and I am aware of no Massachusetts law requiring trusts to be notarized. That said, if the same person is executing a will that needs to be notarized than you may as well have the trust notarized at the same time.

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