Can't find the original trust documents? here's where you should start looking.

As a trustee of a trust in California, one of your first duties is to obtain the original trust document.

But what happens if you can't find the trust document?

In this post you'll understand where trusts are most commonly held, unorthodox techniques to obtain a trust document, and what to do if you've exhausted all options and still can't find the trust.

Let's get into it.

Before examining the different ways you can obtain a lost living trust, it is crucial to understand precisely who can obtain the original trust.

In some cases, the successor trustee requires extra help that can come in the form of friends and family - but in most cases, the extra help they obtained won’t actually be able to help by law when obtaining the living trust document.

So who actually has the authority to receive the living trust?

1. If you are the successor trustee of the living trust, you are able to obtain the original trust as well as any other relevant documentation. This is because the successor trustee is responsible for settling the trust according to the grantor’s wishes. Thus, they need to be able to access the original documents to do just that.
2. If you are a beneficiary of the trust, you are also entitled to view a copy of it as per California’s Probate Code §16061.7. It’s important to note that in some states, even if a beneficiary is removed from a revocable trust they still retain the right to view a copy of it. Furthermore, while a beneficiary is entitled to a copy of the trust, the successor trustee ultimately has to find the original.
3. Finally, specific professionals that were involved in the creation of the trust (attorneys, financial advisors/accountants, and estate professionals) also have the right to obtain the trust. This is due to their involvement in the creation of the trust itself, and because they will likely be involved in the distribution of the trust’s assets as well.

As we noted above, because a trust is not filed, it will not be found at your local county court.

Here are some common places to look instead:

• Safety deposit box
• Attorney’s office
• Investment advisor’s office(s)
• Accountant’s office
• At-home fireproof safe/deposit box
• Online (ClearEstate keeps digital copies)
• With a family member or friend
• Ask the estate representative

Keep in mind that while the first places to look are those that are legally entitled to a copy of the trust, the creator of the trust may have sent copies to loved ones unknown to you.

When asking family members or friends of the trust’s creator, use discretion as to how much information you share with them. Trusts can be a susceptible topic, especially when it comes to who benefits from them.

If you've exhausted all the avenues listed above to find your trust documents, but still can't find the original trust, you're down to a few options...

1) If a State or Federal Estate tax return, or a gift tax return has to be filed for a decedent, it is likely that a copy of the trust agreement is included as part of this filing which can be obtained by contacting the IRS.

However, due to the sensitive nature of the documents of the deceased, the IRS may not always be receptive to your request. Be prepared to prove your authority to act on behalf of the deceased - either through being an executor or estate trustee.

2) It might be best to get in contact with the estate representative this individual will likely be able to provide you with additional information on possible locations of the trust’s original document.

Finally, if you’ve truly exhausted all possibilities of locating the trust document and are still unable to find it, then it is possible that the original was destroyed by its creator or someone else with knowledge of its existence. In this case, it will be up to the court to decide how assets should be distributed according to

Finally, if all else fails, it is possible to recreate the trust document from scratch through a process called reformation.

This process involves having a new document drafted in order to reflect the grantor’s wishes accurately. A qualified estate planning professional will be able to assist with this step as well.

Need some more guidance?

If you are still struggling to find your trust documents, or are wondering if probate court is the next best step, get in touch with one of our trusted estate professionals. With decades of combined experience, our roster of accountants and probate professionals are happy to help you get the help you rightly deserve.