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

[Chris111]

Taxing Matters, thank you for that. The properties are already in the Trust and are recorded at the county as owned by the Trust.

 

[Zigner]

That brings us back to the fact that the owner of the property (the trust) is the name that would be put on the form. You would sign the forms as Trustee, but it's the TRUST that is applying for the fictitious name.

Re-read https://forum.freeadvice.com/threads/should-husband-or-wife-be-named-on-certificate-of-assumed-or-fictitious-name-for-individuals-form.659082/#post-3692732

 

[Zigner]

I believe the problem you are having is that you likely need to file a different form, specifically, SCC59.1-7-BE available at https://www.scc.virginia.gov/pages/Forms-and-Fees

(Certificate of Assumed or Fictitous Name - Business Conducted by an Entity)

 

[Chris111]

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)

This is perfect, Zigner. Thank you very much!

 

[zddoodah]

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

I put a link to the form in my prior response. Following that link takes you to a fillable PDF.

As far as the trust, when property is owed by a revocable trust of which the trustor is also the trustee and (during his/her life) the sole beneficiary (which I assume is what the OP is talking about) it is owned by the individual (or, in this case, for all practical purposes), and it is owned by the trust in name only. If I get a judgment against the trustor/trustee and want to enforce my judgment against property that he/she owns through a revocable trust, the fact that the trust owns the property doesn't matter. It doesn't matter for tax purposes. It doesn't matter for insurance purposes, etc., etc. Yes, nominally, the property is owned by a trust, but quibbling with such a person saying "I own the property," is silly (especially since the technically proper way of looking at it is that the trustee owns title in his/her capacity as trustee).

I also disagree with the person who wrote that most revocable trusts are not funded until after the trustor's death, and I'm confident that the person who wrote that has no evidence to support that assertion.

 

[Zigner]

zddoodah -
The OP needs to fill out the form for an entity, not an individual, as I pointed out above.

If the property is owned by the trust, then the property is owned by the trust. You acknowledge that several times, yet still try to say otherwise. The trust needs to file the form.

 

[Zigner]

This is perfect, Zigner. Thank you very much!

You're welcome - best of luck to you moving forward.

 

[Chris111]

I believe the problem you are having is that you likely need to file a different form, specifically, SCC59.1-7-BE available at https://www.scc.virginia.gov/pages/Forms-and-Fees

(Certificate of Assumed or Fictitous Name - Business Conducted by an Entity)

Thanks. We were looking at that form, but the SCC rep said that the BE Business Entity form requires an LLC or something more than a DBA (which we don't want)..... So it looks like we'll have to stick with SCC59.1-70-IN. But since we are both Trustees, will we both need to sign while submitting the form in the name of the Trust? (Either way, we will probably have to mail in the paper form, as this may not work online.)

 

[Zigner]

...will we both need to sign while submitting the form in the name of the Trust?

The answer to that should be contained in the trust.

 

[Zigner]

Thanks. We were looking at that form, but the SCC rep said that the BE Business Entity form requires an LLC or something more than a DBA (which we don't want)..... So it looks like we'll have to stick with SCC59.1-70-IN.

The form itself has different (additional) options beyond that, including a "business trust".

EDIT: In fact, the first statement on the form is this: The undersigned, on behalf of the business, legal, or commercial entity named below (“the entity”), states that the entity intends to conduct or transact business in the Commonwealth of Virginia under an assumed or a fictitious name and further states:
(emphasis added)

Yours is a legal entity.

 

[PayrollHRGuy]

Maybe I missed something but what is the assumed or a fictitious name in this case?

 

[Zigner]

Maybe I missed something but what is the assumed or a fictitious name in this case?

The OP has rental properties that are owned by his (and his wife's) revocable trust. He'd like to use a DBA to conduct business related to those properties.

 

[Chris111]

I talked with the SCC yet again... we'll try this in the Trust's Name with the name of the Trust as the first name, and the words Revocable Trust as the last name. And we'll both sign as Trustees, and wait to see what happens. (It looks like the instructions for the BE form are clear, and are also clear enough for the Individual form if using a person's own name, but they are as clear as mud for completing this in the Trust's name with two Trustees signing.)

Thanks very much for the help and guidance on a trust actually being one of the legal definitions of a "person" in Virginia. We thought we would have to use one of our names on the Individual form, but prefer using the name of the Trust. We hope this will work.

(We like to keep our personal names off of our leases to protect our privacy, which is why we want a DBA/assumed name. And if we ever have to take a tenant to court, we will do that in the name of our DBA and not in our personal name(s).)

 

[Zigner]

And if we ever have to take a tenant to court, we will do that in the name of our DBA and not in our personal name(s).)

That's a whole different ball of wax. A "DBA" won't protect your personal information in the case of filing a lawsuit.

 

[Taxing Matters]

And if we ever have to take a tenant to court, we will do that in the name of our DBA and not in our personal name(s).)

A DBA is not a person can cannot sue in court. A DBA is simply a name that a person/entity uses for business other than the person's/entity's legal name.

The landlord would have to sue the tenant, and if the trust owns the property then the trust should also be the landlord and enter into the rental contract with the tenants. Then if there is a need to sue tenants, it would be the trust that would have to sue. The downside to that is that the trust must use an attorney to do it, you could not represent the trust yourselves. Although, even if you were the landlords yourselves it would still be a good idea to hire a lawyer to sue the tenants for you.