What to do if you can’t find the original living trust documents
Lost trust documents are more common than you would think. The trustmakers or “grantors” often serve as the original trustees and normally have possession of the original documents.
However, when the grantor dies, what happens if no one can find that trust? The result is that there’s no way of knowing who the decedent named as successor trustee, beneficiary, or what the terms of the trust distribution are.
In other instances, when the grantor moves or closes out their safety deposit box, the original document is lost. Sometimes, the original document is accidentally or even intentionally destroyed. Or the grantor can’t find the living trust because they cannot remember where it’s been stored!
What recourse do you have when you don’t have a copy of the trust documents? If you know the attorney that drafted the trust, you can contact them to request a copy. But, if that attorney has since retired or the attorney died, it can be difficult to find the location of the transferred files.
When you establish a living trust, you need photocopies of the document to transfer some of your property such as stocks to your trust. So, your investment adviser may be able to provide you with a copy. In addition, your tax preparers and accountants should have copies of the trust agreement along with a copy of your will in their permanent files.
Avoiding probate and keeping the terms of the living trust private are two big reasons why people choose to create them. So, you can’t go to a probate court to obtain a copy of the document.
Common places to find a missing living trust
In some cases, the original trust documents are kept in the drafting attorney’s safe, and the client is provided with copies of the signed documents. When the drafting attorney moves or retires, the original documents can be returned to the client or transferred to the attorney who is taking over the practice. Public notice of this transfer should be made.
If an attorney dies, it’s the responsibility of their estate trustee to notify the California Bar Association if legal documents, including living trusts, have been transferred to another attorney. If you can’t find original living trust documents, you can contact the California Bar Association for assistance.
Trusts aren’t recorded anywhere, so you can’t go to the County Recorder’s office in the courthouse to ask to see a copy of the trust. However, if real estate is involved, the trust may be recorded in the local office of the county clerk.
Still can’t find it?
It’s important to store your living trust document in a fireproof and waterproof box in your home or in a safe deposit box. Make sure that your spouse, partner, or successor trustee knows the location of your original document.
If you’re unable to find your original documents, your best option is to find a new attorney and revise your estate plan. You can do a trust restatement in which it will be stated that the new terms of the trust supersede or replace any prior terms.
At the Law Office of David W. Foley, our fees for living trusts are low because we’re efficient with your time.