Should Husband or Wife be named on "Certificate of Assumed or Fictitious Name for Individuals" form?

[Chris111]

Commonwealth of Virginia.

Should Husband or Wife be named on "Certificate of Assumed or Fictitious Name for Individuals" form?

We have a few rental homes and have set up a DBA name. We don't want an LLC, but do have a good umbrella policy.

We are doing this as a married couple, but the Assumed or Fictitious Name for Individuals form (we are not a Business Entity) only allows us to use one of our names. Whose name would be the best to select? We work equally on this - wife doing showing, renting, tenant contact, managing the bureaucracy, buying paint, changing doorknobs and such; husband doing a lot of the repairs, etc., and dealing with handymen that we sometimes hire (in addition to having a day job).

The homes are in a Revocable Trust with both of us as Trustees.

Thanks.

 

[Zigner]

Since neither of you own the properties, why would either of you put your name on the form?

 

[zddoodah]

Since neither of you own the properties, why would either of you put your name on the form?

The OP and his/her spouse do own the properties. That they own them through a revocable trust of which both the OP and spouse are trustees (and, presumably, also trustors and beneficiaries) is of no legal significance whatsoever so long as both are still living.

Whose name would be the best to select?

Nothing in your post indicates that either is better than the other.

Why do you think the form in question won't allow you to use both names? I had no problem at all typing in multiple names.

Also, what is the reason why you're using a fictitious business name?

 

[Zigner]

The OP and his/her spouse do own the properties. That they own them through a revocable trust of which both the OP and spouse are trustees (and, presumably, also trustors and beneficiaries) is of no legal significance whatsoever so long as both are still living.

The TRUST owns the property. The TRUST would file for the DBA.

 

[Zigner]

https://law.lis.virginia.gov/vacode/title59.1/chapter5/section59.1-69/

§ 59.1-69. (Effective January 1, 2020) Certificate required of person transacting business under assumed name.

A. As used in this chapter, unless the context requires a different meaning:
"Commission" means the State Corporation Commission.
"Person" has the meaning prescribed in § 1-230.
B. No person shall conduct or transact business in the Commonwealth under any assumed or fictitious name unless such person files in the office of the clerk of the Commission a certificate of assumed or fictitious name.
C. No person shall use an assumed or fictitious name in the conduct of the person's business to intentionally misrepresent the geographic origin or location of the person.
Code 1950, § 59-169; 1968, c. 439; 1987, c. 702; 1995, c. 168; 1996, c. 904; 2017, c. 594.


https://law.lis.virginia.gov/vacode/1-230/

§ 1-230. Person.

"Person" includes any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.
(emphasis added)

 

[LdiJ]

Commonwealth of Virginia.

Should Husband or Wife be named on "Certificate of Assumed or Fictitious Name for Individuals" form?

We have a few rental homes and have set up a DBA name. We don't want an LLC, but do have a good umbrella policy.

We are doing this as a married couple, but the Assumed or Fictitious Name for Individuals form (we are not a Business Entity) only allows us to use one of our names. Whose name would be the best to select? We work equally on this - wife doing showing, renting, tenant contact, managing the bureaucracy, buying paint, changing doorknobs and such; husband doing a lot of the repairs, etc., and dealing with handymen that we sometimes hire (in addition to having a day job).

The homes are in a Revocable Trust with both of us as Trustees.

Thanks.

Who owns the homes? The Revocable trust is generally ignored for tax purposes and the income from the items in the trust are included on the taxpayer's personal return. The reason for that is the trust is revocable. So, whose name or names are on the deed to the property?

 

[Zigner]

The TRUST owns the properties.

 

[Taxing Matters]

The OP and his/her spouse do own the properties. That they own them through a revocable trust of which both the OP and spouse are trustees (and, presumably, also trustors and beneficiaries) is of no legal significance whatsoever so long as both are still living.

(Bolding added.) I disagree with the part that I bolded. It is still a trust and the trust is the legal owner of the properties. Sure, for tax purposes a revocable living trust is disregarded, but in most other respects it is a trust like any other. It just so happens the trust can easily be terminated by the grantors because of the power of revocation they retain.

 

[Chris111]

Yes, we do own the properties in a revocable trust. We had actually hoped to apply in the Name of the Trust.

The form asks for an individual's name. I called the SCC and they confirmed that it must be in an individual's name and not in the name of the Trust.

I suppose we could try filling out the paper form with both of our names and mailing it in? Or possibly even try entering the name of the trust on the paper form....

 

[LdiJ]

The TRUST owns the properties.

Revocable trusts are often (most of the time) not funded until the trustor passes away. Therefore the trust does not necessarily own the properties by deed.

 

[Zigner]

Yes, we do own the properties in a revocable trust. We had actually hoped to apply in the Name of the Trust.

The form asks for an individual's name. I called the SCC and they confirmed that it must be in an individual's name and not in the name of the Trust.

I suppose we could try filling out the paper form with both of our names and mailing it in? Or possibly even try entering the name of the trust on the paper form....

I would ask for further clarification. The code section I cited above disagrees with the information you received.

 

[Zigner]

Revocable trusts are often (most of the time) not funded until the trustor passes away. Therefore the trust does not necessarily own the properties by deed.

Every trust I have seen drafted, and every bit of literature I have read states that the property should be titled in the trust. If it's not, then the prospect of probate arises for the property. Why else have the trust?

 

[Just Blue]

Yes, we do own the properties in a revocable trust. We had actually hoped to apply in the Name of the Trust.

The form asks for an individual's name. I called the SCC and they confirmed that it must be in an individual's name and not in the name of the Trust.

I suppose we could try filling out the paper form with both of our names and mailing it in? Or possibly even try entering the name of the trust on the paper form....

^^^^^^

 

[Taxing Matters]

Revocable trusts are often (most of the time) not funded until the trustor passes away. Therefore the trust does not necessarily own the properties by deed.

The usual purpose for a revocable living trust is to avoid probate. The only way that happens is that the trust owns the property BEFORE the trust grantors die. I tell my clients setting up such trusts to ensure that the property they want to be distributed to trust is actually transferred to the trust ASAP to ensure they get it into the trust before they die. Pretty much all revocable living trusts I see are indeed funded before death for that reason.

If you are going to wait until death to fund the trust then there really is little to be gained with a living trust at all. Might as well use a testamentary trust (trust created from the will) in that case.

 

[Chris111]

zddoodah, did you use the Virginia SCC online form to enter multiple names?