B2-2-05, Inter Vivos Revocable Trusts (10/31/2017)

Except as expressly provided elsewhere in the Selling Guide, Fannie Mae only accepts individuals as credit-qualifying borrowers. In addition, Fannie Mae normally deems property in which no borrower has an ownership interest as ineligible collateral. However, to accommodate the use of inter vivos trusts as an estate planning tool, Fannie Mae provides an exception for property held by inter vivos revocable trusts created by credit-qualifying borrowers.

An inter vivos revocable trust is a trust that

• an individual creates during their lifetime;

• becomes effective during its creator’s lifetime; and

• can be changed or canceled by its creator at any time, for any reason, during that individual’s lifetime.

Fannie Mae will accept an inter vivos revocable trust that has an ownership interest in the security property as an eligible mortgagor (a party to the security instrument) for all transaction types, provided it complies with the requirements in this topic.

Note: A trust must meet Fannie Mae’s revocability and other eligibility requirements at the time the loan is delivered. Trust eligibility is not affected if the trust documents contain a provision that the trust will, in the future, become irrevocable upon the death of one of the settlors. However, such a change in the trust structure after delivery of the mortgage loan may affect the eligibility of the trust as a mortgagor in a subsequent loan transaction.

A lender delivering a loan that has an inter vivos revocable trust as mortgagor is responsible for:

• determining that both the trust and the mortgage satisfy Fannie Mae eligibility criteria and documentation requirements;

• determining under the laws of the states in which it does business that it can originate mortgages to validly created inter vivos revocable trusts that meet the terms and conditions specified by Fannie Mae; and

• completing a review of the mortgage documentation, applicable state law, and the trust documents to ensure that title insurers provide full title insurance coverage without exceptions for the trust or the trustees for inter vivos revocable trusts in that state. (See Title and Title Insurance Requirements below for additional information.)

Legal document requirements are described in B8-5-02, Inter Vivos Revocable Trust Mortgage Documentation and Signature RequirementsB8-5-02, Inter Vivos Revocable Trust Mortgage Documentation and Signature Requirements. Also see E-2-04, Signature Requirements for Mortgages to Inter Vivos Revocable TrustsE-2-04, Signature Requirements for Mortgages to Inter Vivos Revocable Trusts, for signature requirements under different inter vivos revocable trust scenarios.

The inter vivos revocable trust must be established by one or more natural persons, solely or jointly. The primary beneficiary of the trust must be the individual(s) establishing the trust. If the trust is established jointly, there may be more than one primary beneficiary as long as the income or assets of at least one of the individuals establishing the trust will be used to qualify for the mortgage.

The trustee(s) must include either:

• the individual establishing the trust (or at least one of the individuals, if there are two or more); or

• an institutional trustee that customarily performs trust functions in and is authorized to act as trustee under the laws of the applicable state.

The trustee(s) must have the power to mortgage the security property for the purpose of securing a loan to the individual (or individuals) who are the borrower(s) under the mortgage or deed of trust note.

Note: In the event the originally named trustee is unable or unwilling to serve, and the trust instrument has a mechanism for appointment of a successor trustee, the trust can properly act through the successor trustee.

All property and occupancy types are eligible. For properties that are the borrower's principal residence, at least one individual establishing the trust must occupy the security property and sign the loan documents.

The loan must be underwritten with at least one individual establishing the trust as borrower. Additional individuals, including other individuals establishing the trust, may also be considered co-borrowers if those individuals’ credit will be used to qualify for the loan.

The lender must retain in the individual loan file a copy of any trust documents that the title insurance company required in making its determination on the title insurance coverage.

The following requirements apply to title and title insurance:

• Title held in the trust does not in any way diminish Fannie Mae’s rights as a creditor, including the right to have full title to the property vested in Fannie Mae should foreclosure proceedings have to be initiated to cure a default under the terms of the mortgage.

• The title insurance policy ensures full title protection to Fannie Mae.

• The title insurance policy states that title to the security property is vested in the trustee(s) of the inter vivos revocable trust.

• The title insurance policy does not list any exceptions with respect to the trustee(s) holding title to the security property or to the trust.

• Title to the security property is vested solely in the trustee(s) of the inter vivos revocable trust, jointly in the trustee(s) of the inter vivos revocable trust and in the name(s) of the individual borrower(s), or in the trustee(s) of more than one inter vivos revocable trust.

Only the information related to the individual(s) establishing the inter vivos revocable trust whose credit is used to qualify for the loan should be provided at the time of loan delivery, such as the borrower name and Social Security number. The name of the inter vivos revocable trust cannot be included within the loan delivery data.

A loan that has an inter vivos revocable trust as a mortgagor must be delivered with Special Feature Code 168 (in addition to any other special feature codes that may also be applicable to the transaction).