Do you believe you may have been named in a trust? Are you wondering how to find a living trust in California?
If you have reason to believe a decedent may have named you as a beneficiary or trustee in their trust, it’s worth your time and effort to try to secure a copy of the document.
By nature, a trust is not the easiest document to locate: It’s designed for privacy, bypasses the probate process, and is not found in public records. However, if a trust does appear to be lost, there are actions you can take to reclaim it.
Where are trusts recorded? How do you go about finding a trust? While we will discuss how to find a trust in California in a later section of this article, it is important to first talk about how a trust is different from a will and why the process of locating a trust is more complicated.
How Does a Trust Work After the Settlor's Death?
After a trust creator (known as the settlor, trustor or grantor) dies, their trust will operate in a similar manner to an estate, with the main exception being that trusts generally are not subject to probate.
A trust is a type of legal arrangement in which a fiduciary, known as a trustee, is granted the authority to hold assets for the benefit of trust beneficiaries. For an asset to be held by a trust, the owner of the asset must transfer title to the asset into the trustee’s name.
Until this step is taken, the asset will not be regarded as belonging to the owner’s trust; it will be regarded as belonging to their estate.
This distinction may not make much of a difference while the owner of the asset is alive; however, once they die, whether an asset belongs to their trust or estate will play a crucial role in how and to whom the asset is ultimately distributed.
Learn more about how a trust works after death.
How Is a Trust Different From a Will?
If a decedent dies with an estate valued at more than $184,500, their assets will be subject to probate — which is a court-supervised process to appoint an executor or administrator and validate the decedent’s will, among other things.
Any assets that are not included as part of the decedent’s trust or being distributed via beneficiary designations (i.e., direct transfers) are regarded as belonging to the decedent’s estate.
Probate is a public process to enable parties who believe they have a claim to a portion of the decedent’s estate to make their case. As such, a decedent’s will is public record and generally can be located by a quick trip to the courthouse in the county where probate has been opened.
A trust is significantly more private than an estate, since its assets generally are not subject to the probate process. In fact, many opt for a trust as their primary estate planning document because of its ability to bypass probate, which can not only eliminate hefty probate fees but allows trust beneficiaries to potentially receive their distributions from the trust faster.
While the privacy a trust offers comes with many benefits, it can make it more difficult for the appropriate parties to locate the trust after the settlor dies, especially if they did not leave behind any instructions for how to find their trust document.
Additionally, because no notaries or witnesses are required to execute a trust, as they are for wills, there may not be anyone who can confirm or deny the existence of a decedent’s trust document.
For a will to be presumed valid and used to direct the disposition of estate property, its original version must be filed with the court; a copy of the will won’t suffice absent additional proof demonstrating the validity of the will.
On the other hand, for trust administration to launch, a copy of the trust will work just fine.
Where Are Trusts Recorded?
In your search for how to find trust documents, it may occur to you to ask whether they are recorded somewhere. While that’s a reasonable question, the fact is, trust documents generally avoid the court completely.
As such, they are not matters of public record. This means that you likely will not be able to secure a copy of the trust from the Office of the County Clerk or the courthouse in the same way you would a will.
Why Trusts Generally Are Not Public Record
Trust documents generally are not a part of the public record because only the trustee and the trust document are needed to launch trust administration.
In other words, a trust generally does not need to pass through any court-supervised processes before its assets can be distributed to the appropriate beneficiaries. However, the trustee still will be responsible for completing certain administrative steps before making trust fund distributions.
While a trust’s avoidance of probate has its advantages, it means that beneficiaries and other interested parties will not be able to easily access trust documents if the trustee has failed to provide them with copies. Estate beneficiaries would not have the same problem.
If you are an interested party to a trust who has not been provided with copies of trust documents, it is essential you hire a probate attorney to help you secure the documents you need to enforce your rights.
Exceptions to the Rule
If you are seeking information about a decedent’s trust, there are some exceptions to the rule of trusts not being a part of the public record to be mindful of.
For example, if the trust holds real estate, it’s possible the deeds transferring title to the properties into the trustee’s name were recorded with the county clerk. While that does not mean the trust itself would be recorded, an inspection of property records may be able to confirm the trust’s existence.
The trust, likewise, may be public record if it has been the subject of trust litigation, such as a property dispute (e.g., 850 petitions) or trustee misconduct claim.
The last instance in which a trust could be public record is if it is a testamentary trust, or a trust that was created by the terms of a will. Testamentary trusts use a will to nominate a trustee, name trust beneficiaries and identify and dispose of trust assets; however, they are formed after probate and through a will, which means they are public record.
Who Has Information About the Location of the Trust?
When embarking on your search for a decedent’s trust, there are several parties who could either be in possession of the document or have information about its location.
Because of how involved the responsibilities of a successor trustee are, chances are that the decedent had discussed their appointment with them prior to their passing, or possibly even prior to executing their trust. As a result, the person whom you believe to be the successor trustee may be the best person to turn to in your search for the trust.
The Successor Trustee
The most appropriate person to locate the trust is the successor trustee, since they were directly appointed by the settlor to oversee the trust administration after their incapacitation or death.
The successor trustee can be anyone from a third-party private professional fiduciary to a close relative or friend of the decedent.
If the person believed to be the successor trustee does not have information about the trust, the next best people to turn to would be the professionals involved in the creation of the trust, such as the decedent’s estate planning attorney and financial adviser.
Professionals Involved in the Creation of the Trust
It used to be standard for a person to hire an estate planning attorney and perhaps even a CPA to assist with the drafting of their trust; however, in modern times, many people draft their trusts using do-it-yourself estate planning software — a trend that has the potential to make tracking down a decedent’s trust even harder.
That being said, if the decedent had utilized an estate planning attorney or financial adviser to draft their trust documents, then they may know where the documents are being kept, if they are not in possession of the documents themselves.
Close Relatives of the Decedent
If neither the trustee nor any of the professionals involved with the trust can provide copies of the trust documents, it may be time to check with close family and friends of the decedent — particularly their surviving spouse, siblings and children — to learn whether they know how to locate the trust.
These close relations of the decedent may not be able to provide copies of trust but can point you in the direction of a safe, safety deposit box or other hidden location in which the trust might be found. They may also have information about where the decedent banks, and about their estate planning firm and financial adviser’s office.
While it’s rare for decedents to leave their trust with beneficiaries (since beneficiaries may be motivated to tamper with the document or “lose” it in an attempt to secure themselves greater a greater inheritance under a previous version of the trust or through intestate succession if they are an heir), doing so is not unheard of, especially if a beneficiary is also the trustee.
How to Locate a Trust Document in California
Once you’ve determined the decedent died with a trust, it’s time to begin your search. But, as explained in the following sections, finding a trust isn’t always easy.
There are many reasons why it may be difficult to track down a decedent’s trust. Perhaps the estate planning attorney who was holding on to the document retired or died. Perhaps the decedent had forgotten where they kept the document. Perhaps the document is inside a safety deposit box that no one has been granted the authority to access.
Regardless of the obstacles you may encounter, it’s worth your time and effort to track down a decedent’s trust if you believe one exists. Furthermore, if you are the successor trustee, it is your responsibility.
Successor trustees who sit on a trust, refuse to share it with interested parties or intentionally fail to locate the trust despite having been informed of its existence could be accused of fiduciary misconduct.
Valuable Clues for How to Find a Trust
Are you wondering how to find a living trust in California? Are you wondering how to find an irrevocable trust in California? Have you forgotten whether you created a trust and are now wondering how to find if you have a trust?
The bad news is that regardless of which of these situations you fall under, it’s unlikely to be resolved by a simple trip to the courthouse. If you know nothing about the trust in question or about who may have it in their possession, your search will be all the more difficult. However, if you can find any of the details from the bulleted list below, your search may end up being easier than you expect.
- The name of the trust
- The city or county where the trust or the majority of its properties are likely located
- Any documents, including property deeds, alluding to the existence of the trust
- The contact information of parties who may have information about the trust
4 Places to Look for Trust Documents
Finding a trust may involve multiple stops, but ultimately, it’s a necessary undertaking if a decedent died with a trust. To locate trust documents, start by completing the four steps detailed below.
FAQs About How to Find Trust Documents
If you continue to struggle with figuring out whether a decedent had a trust or with finding the document, check out the frequently asked questions below. If they don’t help to uncover the whereabouts of the trust, then getting in touch with a probate lawyer about next steps is likely your best option.
Contact Keystone Law for advice on how to locate a trust in California.
If you have questions regarding the trust of a loved one, the attorneys at Keystone Law are here to help. Since 2014, we’ve been helping clients secure favorable outcomes in cases involving trusts, wills and probate.
Give us a call at your earliest convenience to request a free consultation. We’ll discuss your questions, talk about how we can help, and reach a solution you can be happy with.
