Procuring a Copy of the Trust from Trustee
Your parent, loved one, or close friend has died. You know they had a plan. Their plan is in their trust. But you were never given a copy of the trust. You know who the trustee is and you asked for a copy. But the trustee either won’t respond or has told you that you won’t be sent a copy of the trust. You want to know what will become of the estate.
Beneficiary’s Right to Receive a Copy of the Trust
In California, trust beneficiaries are entitled to receive a copy of the trust as long as 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. Irrevocability is the key concept. If your mother and father have created a trust that names you as a beneficiary and
they are both alive, then you are not entitled to a copy of their trust. If they are both dead then you are entitled to receive a copy.
California’s Trust Law requires a trustee to serve notice on trust beneficiaries whenever any of the following happen:
- A revocable trust or any part of it becomes irrevocable because one or more of the settlors has died,
- There is a change of trustee of an irrevocable trust, or
- A power of appointment retained by a settlor is effective or lapses upon the death of a settlor of a living trust.
When does the trustee have to give me notice?
The trustee is required to serve notice no later than 60 days after any of the events in 1, 2, or 3 above have happened. For most people, a living trust becomes irrevocable because one or both settlers have died. If that has happened then the trustee has to send out notice.
The notice must tell you all of the following:
- Who created the trust and the date it was signed,
- The name, mailing address, and telephone number of each trustee,
- The address of the physical location where the principal place of administration of the trust is located,
- Any additional information required by the trust itself,
- A notice that the beneficiary is entitled, upon reasonable request to the trustee, to receive from the trustee a true and complete copy of the trust.
The correct way to make sure you have made “a reasonable request to the trustee” for a copy of the trust is to make a written request
. You can do this on your own or you can have your lawyer do it. There isn’t one right way and California law doesn’t require any particular person to make the written request. Just make sure it is done and in writing because, as you are about to learn, that written request is your key to the courthouse
Once the written request is made to the trustee for a complete copy of the trust and its amendments, the trustee then has 60 days to provide a copy. If 61 days pass without a response, then a petition can be filed with the probate court seeking an order requiring the trustee to provide a copy of the trust and its amendments.
Now, do you see why a written request is so important? It’s more than just following the letter of the law. In your petition to the probate court, the written request will be attached as an exhibit, it is proof the request was made.
The trustee was sent a written request and didn’t respond. Now what?
Were you just a little patient? Have 60 days gone by? If so then it’s time to file a petition with the probate court. California’s Trust Law contains potentially bad news for the trustee who didn’t respond to your written request.
A trustee who fails to serve the notification on a beneficiary, per the California Probate Code “…shall be responsible for all damages, attorney’s fees, and costs caused by the failure unless the trustee makes a reasonably diligent effort to comply….” You’ll see the notice (the five points listed above) and the copy of the trust is not the same thing. But they both can be addressed in the same action.
A trustee who won’t send you a copy of the trust is in all likelihood the same trustee who failed to give you notice. If that’s so then the petition can state the trustee didn’t give notice and didn’t provide a copy of the trust after the written demand was made. With that, you can seek attorney’s fees and court costs for having to file the petition.
Don’t expect the judge hearing your petition will automatically give you every penny you ask seek. Many judges will reduce the amount of requested attorney’s fees. However, you have to ask to get any fees, and getting something is better than getting nothing. In addition, you’ll get your copy of the trust so you can decide what to do next.
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