Living-Trust Trustee Deed Requirements in Arkansas

At a glance

Requirements one by one

Trust terms and owner-equivalent powers supply the authority

Ark. Code Ann. § 28-73-815 permits a trustee to exercise trust-conferred powers without court authorization. Unless the trust limits them, the trustee also has the powers of an unmarried competent owner, the powers appropriate to invest, manage, and distribute trust property, and the other powers in the Trust Code. Every exercise remains subject to fiduciary duties.

Section 28-73-816 makes the transaction powers specific. A trustee may sell for cash or credit at public or private sale, exchange or partition property, mortgage trust property, develop land and create easements, make proportionate or disproportionate in-kind distributions, and sign instruments useful to exercise those powers.

Failed unanimity produces majority cotrustee action

Arkansas does not begin with a simple majority rule for every cotrustee decision. Section 28-73-703 says cotrustees “who are unable to reach a unanimous decision” may act by majority. The remaining trustees may act on a vacancy, and they may act around a temporarily unavailable trustee when prompt action is needed to accomplish the trust's purposes or avoid injury.

Delegation is limited when the settlor reasonably expected joint performance. A nondissenting trustee also retains duties to prevent and compel redress of a serious breach. A trustee joining the majority's action preserves the stated dissent protection only through timely notice and only if the action is not a serious breach.

Ordinary administration and conflicted sales follow different rules

Section 28-73-201 says a trust is not under continuing judicial supervision unless a court orders it. Authorized arm's-length administration therefore has no universal advance-approval requirement.

Section 28-73-802 separately makes a trustee's personal-account or otherwise conflicted sale, encumbrance, or management transaction voidable. The listed escape routes include authorization in the trust, court approval, a missed limitation period, beneficiary consent, ratification, or release, and the pre-trustee-contract exception. A sale power does not erase that loyalty analysis.

Arkansas uses a witness-or-acknowledgment execution route

Ark. Code Ann. § 18-12-104 states that a real-estate deed is executed before two disinterested witnesses or, in default of that route, acknowledged by the grantor before two such witnesses who subscribe it. Sections 18-12-201 through -206 supply the acknowledgment, proof, officer, and certificate mechanics.

For an acknowledgment in a representative capacity, § 18-12-202 requires the form to name both the person acknowledging and the person or entity for which the person acts. That pairs with Trust Code § 28-73-1010: a trustee avoids personal contract liability, absent contrary contract terms, by properly contracting in the fiduciary capacity and disclosing that capacity.

Certification proves selected facts without becoming mandatory

Section 28-73-1013 permits a trustee to furnish a nonbeneficiary a certification instead of the trust instrument. It must state seven information groups, including the acting trustee and address, trustee powers, cotrustee authority, and the manner of taking title. Any trustee may authenticate it, and the section states no universal acknowledgment, witness, or notary formality for the certification itself.

The recipient may require excerpts designating the trustee and conferring power for the pending transaction. Section 28-73-1013 does not say that a certification must be attached to or recorded with every trustee deed.

Recording carries both deed and transfer-tax conditions

Under §§ 18-12-201 and 18-12-209, the deed must be acknowledged or proved before it is admitted to record, and it is recorded with the county recorder where the land is located. Section 14-15-404 makes filing constructive notice and denies an unrecorded deed priority against a later value purchaser without actual notice or a qualifying judgment creditor.

Arkansas also has a statewide transfer-tax gate. Section 26-60-110 requires payment or exemption proof before the recorder accepts the transfer. A taxable instrument uses the prescribed affidavit/stamp route or the signed statutory tax statement with the grantee's address. An exempt instrument may use the statutory exemption statement instead of attaching the department form or receipt.

Purchaser protection depends on good faith, value, and knowledge

Section 28-73-1012 protects a nonbeneficiary that in good faith and for value deals with a trustee without knowledge of excess or improper power. That person need not inquire into the power or its exercise, and a good-faith asset recipient need not ensure proper application.

A separate certification rule in § 28-73-1013 permits no-knowledge reliance on stated facts and makes a good-faith transaction enforceable against trust property as if the representations were correct. Those Trust Code protections do not replace the recording-priority rule in § 14-15-404.

What trips people up

• Majority comes after failed unanimity. Section 28-73-703 does not simply say every cotrustee power begins with majority action.
• The certification signer rule is separate. Any trustee may authenticate the certification even though the transaction itself must satisfy the cotrustee action rule.
• Certification is not the statewide recording companion. Transfer-tax proof or the statutory tax/exemption statement is the express companion requirement.
• Acknowledgment should disclose capacity. The statutory form distinguishes a person acting in the person's own right from one acting for another person or entity.
• A broad sale power does not cure self-interest. Section 28-73-802 can still make the transaction voidable.

Common questions

Does an Arkansas trustee need court approval to sell trust real estate?

Not ordinarily when the trust and §§ 28-73-815 and -816 authorize an arm's-length sale. A conflict under § 28-73-802 or a dispute requiring instructions can bring the court into the transaction.

Must every cotrustee sign the deed?

Read the trust first. Under § 28-73-703, cotrustees that cannot reach unanimity may act by majority, with additional rules for vacancies, temporary unavailability, delegation, dissent, and serious breaches.

Must the certification be recorded with the deed?

No universal certification-filing rule appears in § 28-73-1013. The recorder does, however, require the deed's acknowledgment or proof and the transfer-tax payment or exemption material required by § 26-60-110.

Does the buyer need to read the full trust?

Not when the good-faith and knowledge conditions of §§ 28-73-1012 and -1013 apply. A certification recipient may still request the limited excerpts that designate the trustee and confer power for the pending transaction.

Statutes and sources

• Ark. Code Ann. §§ 28-73-815 and -816 — court-free general, owner-equivalent, sale, mortgage, realty, distribution, and instrument powers. Official 2005 Act 1031 (accessed 2026-08-13).
• Ark. Code Ann. § 28-73-703 — failed-unanimity majority action, vacancy, unavailability, delegation, dissent, and serious-breach rules. Official 2005 Act 1031 (accessed 2026-08-13).
• Ark. Code Ann. §§ 28-73-201 and -802 — court role and loyalty/conflict rule. Official 2005 Act 1031 (accessed 2026-08-13).
• Ark. Code Ann. §§ 18-12-104 and 18-12-201 through -206 — deed witnesses, acknowledgment or proof, representative-capacity form, and certificate. Current public-domain code publication (accessed 2026-08-13).
• Ark. Code Ann. §§ 28-73-1010, -1012, and -1013 — disclosed fiduciary capacity, third-party protection, optional certification, excerpts, and reliance. Official 2005 Act 1031 (accessed 2026-08-13).
• Ark. Code Ann. § 18-12-209 and § 14-15-404 — county recording, constructive notice, and later-purchaser/judgment-creditor priority. Current Titles 18 and 14 (accessed 2026-08-13).
• Ark. Code Ann. § 26-60-110 — transfer-tax payment/exemption proof and the alternative recorded statements. Official 2017 Act 656 (accessed 2026-08-13).