You ask for it. Well let’s assume that you have already asked for a copy and someone says no. Then it all depends on whether your mom or dad is still alive, and whether you are a beneficiary of the Trust.
For starters, if your parents create a revocable, living Trust during their lifetimes and they are still alive, then you have no right to obtain a copy of their Trust. Trusts are private documents and as long as the Trust can be revoked, no one other than the Trust creators are entitled to receive a copy of it. Of course, your parents could provide you with a copy of their Trust voluntarily, but that is their choice to make, not yours. Just for your information, a trust is not a public record, so it’s impossible to retrieve a trust document from a public office, agency or anyone who is not a beneficiary and doesn’t have the rights to know about the details your trust.
When Does a California Trust Become Irrevocable?
Once one of your parents dies, then you MIGHT be entitled to see the Trust depending on whether the Trust, or a portion of the Trust, becomes irrevocable on first death. In previous years it was common for half of the Trust to become irrevocable when the first spouse died. Once a Trust is irrevocable, then every beneficiary of that Trust (both current and remainder beneficiaries) and every heir-at-law of the decedent have a right to see it. You can find our free Letter Template for Requesting a Trust here, as well as our Letter Template for Requesting a Will.
In more recent years, California Trusts have been drafted so they remain revocable after the first spouse dies because of changes to U.S. Estate Tax laws. Although, there are still many good reasons to have an irrevocable portion to protect assets from the children (but that’s a topic for a different post).
Once both of your parents pass away, then you would be entitled to receive a copy of their Trust regardless of whether you are a named beneficiary. Under California law (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.
So all you have to do once your parents are gone is request a copy of the Trust from whomever has it. And what if they refuse to give it to you? You have to take action in California court.
By the way, Trusts are not recorded anywhere. That means you cannot go to the County Recorder’s office and ask to see a copy of the Trust. And you cannot go to any other California government office and ask to see the Trust. Trusts are private documents and they typically remain private even after someone dies. The only way to obtain a copy of the Trust is to demand a copy from the Trustee (or whoever has a copy of the documents, if not the Trustee).
Filing a Petition with Probate Court
If the Trustee fails or refusing to comply, then you must file a petition with the California probate court. In the petition, you ask the court to order the Trustee to provide a copy of the Trust documents to you. In our experience, once you file your petition with the Probate Court, the person who has the documents will usually provide them to you before the court hearing because they don’t want to be yelled at by the judge.
In any event, you have the right to see the Trust documents and you need to start the process by asking for a copy of it in writing. You don’t need to write anything fancy, just send a letter, fax, or email and ask for a full and complete copy of the Trust documents, including all amendments. Once you put that in writing, the person who has the documents has sixty days to provide them to you. If they fail to do so, you file in court.
It’s just that easy. Well, not always easy, but at least you have an idea of what you need to do. For advice on your specific situation, contact the experienced Trust attorneys at Albertson & Davidson today.
