August 22, 2012

Locating a Trust

A common question I see asked by people is,  "where can I find a copy of a living trust?" For example, a person heard that a relative died recently and remembered that he or she, the decedent in legal terminology, might have written a trust a few years ago but is not totally sure.

Many people erroneously believe that a government agency or superior court stores copies of living trusts. The simple answer is no. There is no government agency or superior court that stores copies of living trusts. Living trusts, unlike wills, are not required to be lodged with a government agency or superior court. See Prob C § 8200.

A logical follow-up question is, "where then can I find for a copy of a living trust?"

The easiest method is to rummage through the decedent's belongings. Most people keep a copy of the trust at home in a secure place, unless they have a safe deposit box. Although for a safe deposit box, access would likely be an issue because of bank privacy considerations.

A creative way for determining the existence of a living trust is to check the real property records pertaining to the decedent. If the decedent did in fact write a trust and owned real property, he or she should have transferred the property into the trust via a deed. If that is the case, the deed should show the name of the trust, the trustee and the date it was signed. Furthermore, it is common for attorneys to write the trust transfer deed for clients, also known as a grant or quit-claim deed, so the attorney's name might be listed on the deed under "Recording Requested By" in the upper left-hand corner. Many attorneys are also notaries, so it would be prudent to check the notary's name on the deed as well.  The State Bar of California's website has an online search where you can look up the name of every practicing attorney in California. Yes, every single one of them and yes I am on there. Consequently, some attorneys keep copies of trusts they have written in the past.

However, if the decedent did not own real property, it is very challenging to know if a person wrote a living trust because public records will not reveal anything. In that case, you are looking for the proverbial needle in a haystack.