Who gets to see the living trust?

After the death of a loved one, taking action to settle an estate can be a daunting task for the decedent’s family members. They may not know about their rights as beneficiaries who have been named in a living trust. One of the questions that may be of concern is about who gets to see the living trust.

There is no legal requirement that states that a living trust must be “read” after the trustmaker dies. In fact, because a revocable living trust does not have to go through probate court, the settlement of the trust is a private matter between the successor trustee and any beneficiaries of the trust. It’s the job of the trust attorney to make the determination as to who is entitled to receive a copy of the trust as well as who should be sent a copy even if state law doesn’t require it.

Typically, the trustmaker or settlor appoints themselves as trustee and initial beneficiary, and as such, will have access to the trust document. During the settlor’s lifetime, the assets and property held in the trust are managed by and for their benefit. The settlor has the right to amend and/or revoke the trust anytime during their lifetime.

At the appropriate time

After the death of the trustmaker, the person or entity named to serve as the successor trustee must see the living trust because they are responsible for settling it. They must review the trust agreement to determine who the beneficiaries are and if there are any special instructions and/or restrictions about distributing the shares of the trust. 

All of the beneficiaries named in the agreement are entitled to receive a copy of the living trust so that they understand what they’re inheriting from the decedent as well as how and when they will receive it.

In addition, the following people also must receive a copy of the trust:

• Accountant for the trust
• Personal representative named in the trustmaker’s pour-over will if he or she had one
• IRS and/or state taxing authority ( if any portion of the estate is taxable for federal or state tax purposes)

If the attorney for the trust anticipates a challenge to the validity of the agreement, they may choose to send a copy of the living trust to the “heirs at law” of the trustmaker who are not named in the trust or to any beneficiaries that were named in the trustmaker’s prior agreements. 

Making important decisions

While one of the biggest benefits of setting up a living trust is to avoid the probate process, the fact that the trust is not a public record is also a benefit to the executor of the estate or successor trustee as well as any beneficiaries.

The administration of a trust can be complicated depending upon the nature of the case. At the Law Office of David W. Foley, living trust attorney in San Diego, we provide expert trust administration to our clients so you don’t have to work though those duties on your own.

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