To obtain a copy of a trust document, you typically must request one from the successor trustee, according to California Probate Code section 16060.7. However, not everyone is entitled to receive a copy, nor is the trustee required to provide one while the trust creator is alive and competent.
Imagine several months have passed since your parent’s death, yet you still haven’t received a copy of their trust. You suspect your parent changed the trust at a time when they lacked mental capacity due to a prior stroke — which could render it invalid. However, without access to the document, you can’t confirm your suspicions. What’s worse, the trustee is ignoring your requests.
For those with a financial interest in a trust, getting a copy of the trust is crucial. You have only a limited window to contest a trust, and the longer the trustee withholds the document, the harder it could become to retrieve assets that were wrongfully distributed. Additionally, without reviewing the trust, you won’t know what you’re entitled to.
This is why working with a trust attorney is essential. An attorney can pressure the trustee to produce the document or escalate the matter to the probate court if they refuse to comply.
In this article, we’ll cover why obtaining a copy of the trust is so important, the steps for requesting it, and what to do if the trustee is failing to meet this legal obligation.
What Is a Trust Document?
A trust document (also called the terms of a trust) is a legal instrument that outlines how trust property should be passed down, as well as the trustee’s responsibilities and limitations when administering a trust. According to Probate Code section 16060.5, it may include the original trust instrument, any amendments to the trust, and other relevant documents that affect the distribution of trust assets.
When a trust creator (called a settlor, grantor or trustor) wants to make significant updates to their trust, they may opt for a trust restatement, which replaces the previous trust rather than amending it. In such cases, the terms of the trust do not include prior versions of the instrument. Instead, only the restatement of the trust must be provided.
It’s important to note that Section 16060.5 applies only to irrevocable trusts — or to portions of trusts that become irrevocable upon the settlor’s death. Most revocable trusts automatically become irrevocable upon the settlor’s incapacity or death.
Who Is Entitled to a Copy of a Trust?
To be entitled to a copy of a trust, you must either be a beneficiary or trustee of the trust, or a direct heir of the decedent.
In the sections that follow, we’ll explore Probate Code section 16061.5 in more detail and clarify who qualifies as a party entitled to notice.
Are Beneficiaries Entitled to a Copy of the Trust?
Trust beneficiaries are entitled to a copy of the trust, since they have a financial interest in it.
It is essential for beneficiaries to request a copy of the trust from the trustee so they can review its terms. Doing so not only allows them to understand their inheritance, but it enables them to confirm the document’s validity.
Are Family Members Entitled to a Copy of the Trust?
A decedent’s family members may or may not be entitled to a copy of the trust; it depends on whether they are an heir of the decedent.
A direct heir is a family member who would inherit by intestate succession if there were no valid estate plan in place. For example, if a decedent has a surviving spouse and children, they would be considered their direct heirs.
Even if a family member is not named in a trust, they should still request a copy — provided they are a direct heir. Reviewing the document may reveal irregularities — such as undue influence or fraud — which could cast doubt on its validity. If a trust is successfully contested, direct heirs could inherit by intestate succession.
For this reason, it’s as important for heirs as it is for beneficiaries to secure a copy of the trust.
Are Creditors Entitled to a Copy of the Trust?
Creditors of a decedent are not automatically entitled to a copy of their trust. However, if the decedent’s estate lacks sufficient assets to cover their outstanding debts, and the decedent’s creditors take legal action against the trust, the creditors may be able to seek copies of the relevant portions of the trust to determine whether trust assets could be used to satisfy the debts, according to Probate Code section 19001.
Are Third Parties Entitled to a Copy of the Trust?
Third parties do not have a financial interest in a trust; therefore, they are not entitled to a copy of the document. Unlike wills, which are public record, trusts remain private and generally can’t be accessed by visiting the courthouse.
When Must a Copy of a Trust Be Provided?
Under California Probate Code section 16061.5, a successor trustee is required to provide a copy of the trust to interested parties upon request — but only under specific circumstances. We go over what these circumstances are in the following sections.
Keep in mind that interested parties can technically request a copy of the trust at any time — even outside the circumstances mentioned. It’s just that the trustee may not be required to comply with their request.
Settlor’s Death
Upon the settlor’s death, a trustee is generally required to provide a copy of the trust to interested parties upon request, states Probate Code section 16061.5 (a)(1).
Although a trust may become irrevocable when the settlor loses capacity, this does not automatically entitle beneficiaries to a copy of the trust, nor does it mean their interest in the trust immediately vests.
The reason for this is simple: Even if a settlor lacks capacity, the trust could still be potentially amended or revoked. For example, if a settlor loses capacity during a mental health episode but later regains capacity, they generally would regain the right to amend or revoke their trust.
Additionally, while a settlor is alive, the trustee may not owe any fiduciary duties to the contingent beneficiaries — even if the settlor lacks capacity. This is particularly true if the trust terms stipulate that the settlor remains the sole beneficiary of the trust for their lifetime.
Furthermore, even if a settlor has permanently lost capacity, a legal representative, such as their conservator or agent with power of attorney, may have the ability to amend or revoke the trust on their behalf.
To amend or revoke a trust, a conservator typically must obtain court approval — that is, unless the trust document expressly prohibits the conservator from doing so.
On the other hand, an agent with power of attorney can only amend or revoke the trust if both the trust document and the power of attorney agreement explicitly grant them this authority.
Change of Trustees
A trustee is generally required to provide a copy of the trust to beneficiaries upon request when there is a change of trustees during trust administration of an irrevocable trust, as specified in Probate Code section 16061.5 (a)(2).
Even if interested parties had been provided the trust terms at the start of administration, they are entitled to request them again when a new trustee takes over. This not only promotes transparency, but it allows beneficiaries to refresh themselves on the trust terms to determine how the change of trustees might affect them.
Power of Appointment Becomes Active or Ends
A trustee must provide interested parties with a copy of the trust upon request when a power of appointment either becomes effective or lapses, according to Probate Code section 16061.5 (a)(1).
A power of appointment is a legal right granted by the settlor that allows a designated individual to decide how certain trust assets will be distributed. This power typically activates or expires upon the settlor’s death — though its scope will depend on the terms of the trust.
Since improper use of a power of appointment could impact beneficiaries’ inheritances, they have the right to review its terms. If they request a copy from the trustee when the power of appointment starts or ends, the trustee must provide it.
Why Is It Important for Beneficiaries to See the Trust?
To assert their rights, trust beneficiaries must review the terms of the trust — ideally with guidance from a skilled trust attorney. However, they cannot do this without obtaining a copy of the trust from the trustee.
In the following sections, we explain why it’s crucial for beneficiaries to request a copy of the trust upon receiving notification by the trustee at the start of administration.
Note that some trustees include a copy of the trust terms with their notification — in which case making a separate request may not be necessary.
Verify the Trust’s Validity
Suppose a decedent created a trust before marriage and later amended it to disinherit their children under pressure from their spouse. This could indicate undue influence — where excessive persuasion was used on a decedent to cause them to override their true intentions. In such cases, the decedent’s trust may not be valid and, therefore, should be contested.
Seeing a copy of the trust document allows beneficiaries to verify its validity. Without it, they have no way of confirming whether legitimate grounds for contesting the trust exist or whether the trust accurately represents the decedent’s true intentions.
Understand Your Inheritance Rights
The trust document spells out what assets a trust holds, who the beneficiaries are, what assets they are entitled to, and when distributions will occur. Without this information, a trustee could easily withhold a beneficiary’s inheritance or delay payments.
By reviewing the terms of the trust, beneficiaries can ensure they’re receiving their fair share of the trust and hold the trustee accountable if they fail to follow its instructions.
Hold the Trustee Accountable
Suppose months have passed without a single distribution, causing beneficiaries to be concerned. When confronted, the trustee claims that the trust prohibits distributions until a year after the settlor’s death. This causes beneficiaries to request a copy of the trust, as they have no way of verifying the trustee’s claim without reviewing the trust document.
Some trustees abuse their power, conceal assets or mismanage trust funds. Since trustees are legally bound to act in the beneficiaries’ best interests, obtaining a copy of the trust is crucial in ensuring the trustee is following its terms.
While trustees generally have broad authority, their powers may be restricted by the trust’s terms. Beneficiaries must review the document to understand the trustee’s powers and restrictions so they can hold them accountable for any abuse or mismanagement.
Steps for Getting a Copy of a Trust
Obtaining a copy of a trust is usually a straightforward process, but it requires a basic understanding of California trust laws.
By law, a trustee must send all trust beneficiaries and heirs a notification by trustee upon the settlor’s death. Probate Code section 16061.7 lays out exactly what a notification by trustee should include.
For example, a notification by trustee should inform beneficiaries and heirs that the settlor has died, that the settlor’s trust is now irrevocable, that they have the right to request a copy of the trust, and that the deadline to contest a trust is 120 days from the date of notification or 60 days from the date they receive a copy of the trust — whichever is later.
For a detailed breakdown of how to get a copy of a trust document, review the steps below.
1. Wait for Delivery of Notification by the Trustee
Under Probate Code section 16061.7 (f), a trustee must provide each interested party with a notification by trustee — typically within 60 days of the settlor’s death (or within 60 days of the trustee learning of their death).
If you believe a loved one died with a trust and that you are a beneficiary of the trust, but the trustee has failed to send the required notification within the timeframe stipulated, you may need a trust attorney’s help to ensure you receive it.
While a trustee is not required to include a copy of the trust document with the notification, they may do so to streamline the process.
2. Send a Written Request for the Trust Document to the Trustee
Under Probate Code section 16061.7, a trustee must provide interested parties with a copy of the trust document upon request, unless an exception under Section 16069 applies.
Probate Code section 16069 and 15800 outline key exceptions:
- If the trust is still revocable and the holder of power of revocation is competent, the trustee is not required to provide a copy of the trust document, trust accountings or trust information to beneficiaries. However, if the holder of power of revocation loses competence, the trustee may be required to provide these documents..
- A trustee who is also a beneficiary does not need to provide themselves with a copy of the trust, as this would be redundant.
If you need a copy of the trust, submit your written request as soon as possible after receiving the notification by trustee, as certain legal actions — such as trust contests and creditor claims — are usually time-sensitive.
Keep a record of any requests you make to the trustee in case the trustee fails to comply and legal action becomes necessary.
3. Give the Trustee a Reasonable Amount of Time to Fulfill Your Request
After submitting your request for a copy of the trust, the trustee must provide a copy within a reasonable timeframe — provided you are entitled to it as an interested party.
While it’s important to follow up if needed, pressuring the trustee too aggressively could strain your relationship with them and potentially delay administration. If the trustee is uncooperative or you have concerns about potential trustee misconduct, an attorney can assist you with compelling compliance from the trustee.
What to Do When a Trustee Doesn’t Give Beneficiaries a Copy of a Trust
If a trustee fails to fulfill their duty to provide beneficiaries with a copy of the trust, beneficiaries must persist in asserting their rights. Just as they are entitled to their rightful inheritance, they are entitled to a copy of the trust — as they can’t protect their interests without seeing it.
Follow the steps below if a trustee is refusing or ignoring your request for a copy of a trust.
1. Send a Firm Reminder to the Trustee About Your Prior Request
If a significant amount of time has passed since you made your request for a copy of a trust document and you’ve received no response, consider following up with the trustee.
Firmly remind them that you are entitled to a copy of the trust and may have no choice but to pursue legal action if they continue to ignore your requests.
Keeping a thorough record of all correspondence with the trustee — even if they don’t respond — is crucial. Should you need to take legal action, this documentation can serve as evidence of their noncompliance.
2. File a Petition to Compel the Trustee to Produce a Copy of the Trust Document
If the trustee refuses to comply with your request for a copy of the trust, you may need to seek a court order compelling them to do so. This involves filing a petition that outlines the ways in which the trustee has breached their duties. The petition should be supported by any evidence you have, such as your log of correspondence with the trustee.
In many cases, the petition alone may prompt the trustee to comply, averting the need for further legal action. However, if they continue to resist, the matter may need to be resolved in court.
3. Attend the Hearing on Your Petition If Necessary
If court intervention becomes necessary, having a skilled trust attorney by your side is essential. Presenting evidence — such as the notification by trustee, proof of your request for a copy of the trust, and the trustee’s failure to comply — can greatly strengthen your case.
Since trustees are generally required to provide beneficiaries with a copy of the trust, the court will likely grant your petition unless a rare exception applies.
4. Seek Attorney Fees and Damages
If the case is resolved in court, you may be able to recover attorney’s fees and damages from either the trustee or the trust itself. If the court finds that the trustee acted in bad faith by refusing to provide the trust document, they may be held personally liable for any penalties they incur.
According to Probate Code section 16061.9, a trustee who fails to serve notification by trustee as required by Section 16061.7 is responsible for “all damages, attorney’s fees, and costs caused by the failure unless the trustee makes a reasonably diligent effort to comply” with this duty.
FAQs: Getting a Copy of the Trust
If you continue to have questions around how to get a copy of trust documents, refer to the frequently asked questions below.
In the event you still can’t find the information you’re searching for, we encourage you to reach out to our firm for personalized guidance.
How do I find trust documents?
Unlike a will, which generally can be accessed with a visit to the courthouse, trusts are not public record and cannot be found in the same way.
Locating a trust may be as simple as asking the decedent’s estate planning attorney, financial planner or family members. However, it could also require a thorough search of their home, office or personal records.
While there is a chance the decedent never created a trust or intentionally destroyed it, it’s best to consult a trust attorney before reaching that conclusion. They may have strategies to help determine whether a trust document exists.
Can I see someone’s trust online?
No, you typically can’t view someone’s trust online — just as you can’t find trust documents at the courthouse. A trust is intentionally designed to be private.
Can a trustee request a copy of the trust?
Yes and no. Beneficiaries are usually the ones requesting a copy of the trust from the trustee — rarely does a trustee need to request it.
If a decedent appointed someone to serve as successor trustee, they likely informed that person of their role. They also may have let the trustee know where to find the trust document.
However, if they can’t locate the trust, they can try reaching out to the decedent’s estate planning attorney, financial adviser or family members to see if they have a copy of the trust to provide them.
How do I find the trustee of a trust?
You don’t typically search for the trustee of a trust — rather, the trustee is supposed to find you. When a settlor dies, it’s the trustee’s responsibility to notify interested parties about the start of trust administration, not the other way around.
If you haven’t received notification, that’s a different issue. You may need the help of a trust attorney to confirm whether a trust exists and whether you have a financial interest in it. If both are confirmed, your attorney can assist in identifying the trustee and, if necessary, pursuing legal action to ensure they fulfill their duties.
Can I sue the trustee?
Yes, a trustee can be sued for breaching their duties — especially if their actions resulted in financial harm to the trust or its assets.
However, suing a trustee typically requires substantial evidence of wrongdoing. For instance, if you suspect the trustee of stealing from the trust, you generally would need bank statements, receipts or other documentation to support your claim.
Legal action against a trustee may seek to suspend, remove or surcharge them. If their misconduct caused significant losses, you might also be able to recover damages and impose a surcharge to hold them financially liable.
Still have questions about how to get a copy of the trust document?
Don’t let trust administration move forward without securing a copy of the trust. Without it, you can’t effectively enforce your rights as a beneficiary. Trustees hold significant power in managing the trust, and the best way to keep them accountable is by knowing exactly what you are entitled to receive from them.
At Keystone, trusts and wills are our specialty. Let us guide you through the complexities of trust administration so you can rest assured you will receive what’s rightfully yours from your loved one’s trust. Call us today to learn how we can help.
