Searching for your family’s living trust documents?

Infection and illness from COVID-19 have become real possibilities for all of us, but the elderly are especially vulnerable. Over the past several months, many older individuals have succumbed to the virus, dramatically changing the lives of their families overnight. Not only are family members dealing with the grief of a family member passing, but they might also have to settle a parent’s estate which could present problems if they’re searching for trust documents and don’t know where to look.

So, the question is how to find living trust documents if you were never given a copy of them.  First of all, if your father and mother made a revocable living trust during their lifetimes and one of them is still alive, you have no legal right to obtain a copy of their trust as long as they named themselves as co-trustees and have managed the trust together.

At this point, the surviving spouse generally becomes the sole trustee of the estate and continues to manage the estate per its terms unless the terms in the trust dictate otherwise. Also, as long as the other spouse is living, no one else is entitled to receive a copy of it unless they choose to provide them with one voluntarily.

The situation changes after they both die. The trust becomes irrevocable, and then you would be entitled to receive a copy of it even if you were not named as a beneficiary. Under California Probate Code section 16061.7 every trust beneficiary and every heir-at-law of the decedent is entitled to receive a copy of the trust document.

Revocable vs irrevocable

If you’re handling the estate of one or both of your parents, you need to understand the difference between a revocable trust vs an irrevocable trust. The laws pertaining to California living trusts are included as part of California’s Probate Code.

In the case of a revocable trust, the creator(s) of the trust, also known as the grantor(s), can modify or cancel the trust while they are still alive. If the trust is in both of your parents’ names and one is still living, the trust remains revocable and, therefore, no one is entitled to a copy.

Irrevocable trusts, on the other hand, are ones in which the trust terms cannot be modified, changed, or terminated without the consent of the beneficiary or trust heirs. By creating an irrevocable trust, the grantor(s) has effectively transferred all ownership of their assets into the trust and have legally removed all of their rights of ownership to their assets and trust.

Upon the death of the grantor or co-grantors, all trusts are irrevocable. If you’re a beneficiary, you’re entitled to receive a copy, by law. What recourse do you have if the trustee refuses to give it to you?

Probate, if you have to

If the trustee fails or is refusing to comply, you must file a petition for trust documents with the probate court in San Diego.  The petition can take the form of a letter, fax, or email, asking for a full and complete copy of the trust documents, including all amendments.

If the trustee fails to comply, you can file in court. The Law Office of David W. Foley, San Diego probate attorneys, can provide expert counsel during this difficult time.

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