So often we’re asked, “Is there a way to make the executor of the trust give a beneficiary a copy of the trust?” You can’t…but you can still get a copy of the trust. It is a matter of knowing what document you actually want and getting to know some of the specific language used in probate court.
A Will Is Not a Trust and a Trust Is Not a Will.
People very often use the word “will” interchangeably with “trust.” They appear to do the same thing, but they are two different estate planning documents and work in different ways. California law treats wills and trusts differently when it comes to getting a copy or making someone provide you with a copy.
The executor (or administrator) is the person in charge of a probate estate. California’s Probate Code (our probate law) refers to either one as a personal representative. When a person dies and leaves a will, then the personal representative is called an executor. The personal representative is called an administrator when the person who died didn’t have a will. You will care if there is a will, or not, if the person who died did not have a trust or did not fund their trust. In that case probate will be necessary.
Getting a copy of a California Will.
The executor of a will does not have a legal duty in California to provide you with a copy of the will.
In other words, you can write a demand letter, make a phone call, and send the executor an email requesting a copy of the will and he or she can refuse to provide a copy. But that’s not the end of the story.
When filing the probate petition, if a will exists a copy of the will must be attached to the petition. Are you a beneficiary under the will? If you are beneficiary under the will then both a copy of the petition and the will, must be mailed to you.
However, before the petition can be filed. The original will must be deposited with the probate court in the county where the person lived just before they died. The original will is a public record and can be viewed by anyone. You can also get a copy of the will from the probate court.
For a complete explanation of how to determine if there is a will and how to get the original or a copy see our article How Do I Find Out If I’m a Beneficiary in a California Will?
Getting a Copy of a California Trust.
The trustee is the person who is the legal representative of the trust. That means they have the right to conduct the trust’s business. The trustee may be a beneficiary or may get nothing from the trust.
In California, trust beneficiaries are absolutely entitled to receive a copy of the trust, if the trust has become irrevocable (i.e. the trust can no longer be changed). The same is true for heirs of the settlors (the people who created the trust) who aren’t named as beneficiaries. It doesn’t matter if the trust was created in California or somewhere out of state. If the trustee is in California, and you fit into one of the categories, then you are entitled to receive a copy of the trust.
The trustee is supposed to give you notice that you have a right to a copy of the trust.
Sometimes that happens and sometimes it does not. You do not have to wait for the trustee to get around to giving you notice. Do you know who is the trustee? If so then you or your lawyer can send them a written demand for a copy of the trust.
Once the written request is made to the trustee; asking for a complete copy of the trust (and amendments if there are any). The trustee has sixty days to provide a copy. What if sixty-one days go by without a copy of the trust being sent? Then you have the right to file a petition with the probate court. The probate court may compel the trustee to provide a copy of the trust and its amendments.
For a complete explanation of how to get a copy of California trust and what to do if the trustee won’t provide a copy see our article What Do I Do If My California Trustee Won’t Give Me A Copy Of The Trust?
What we can do to help.
We realize that the language of the Probate Court can be overwhelming when you are already experiencing a loss. Contact us today to talk about your next steps and how we can help you. We offer a free 30-minute phone consultation to discuss the details of your situation! Call us today at (888) 443-6590 to set your appointment.
AttorneyThe Grossman Law Firm, APC · 525 B Street, Suite 1500, San Diego, CA 92101 · (951) 523-8307