Who’s Entitled to See Your Living Trust?
As a California attorney for 30 years, I’m often asked the question:
Is anyone entitled to receive a copy, for example, of my parent’s living trust before one, or both, have passed away?
The answer depends upon whether their trust is revocable or irrevocable.
If the trust is irrevocable, then the answer is generally yes. Irrevocable trusts mean just that – they can’t be changed or amended. However, there are some exceptions where, for example, the trustor (the person who creates the trust), trustee (person who carries out the terms of the trust) and all beneficiaries agree in writing to a change or amendment. Sometimes this would require court review and approval.
Since the general rule is that an irrevocable trust is “etched in stone”, the law recognizes the named beneficiaries as having certain rights, including the right to receive a copy of the trust.
Conversely, revocable trusts may be amended or revoked by the person who created the trust (the trustor) and the beneficiaries therefore have no assurance that the trustor won’t later change his or her mind and remove one or more persons as beneficiaries. Since their interest is not “vested”, they have no right to receive a copy of the trust.
However, a revocable trust will become irrevocable when the trustor passes away. Only the trustor (not the “trustee”) has authority to make changes to a revocable trust. When the trustor dies, then the trust becomes “etched in stone”.
A revocable trust may also become irrevocable if the trustor becomes mentally incapacitated and no longer able to understand what a trust is, what assets she or he (and the trust) owns, or who the beneficiaries are (or could be). At this point, a beneficiary could argue that the trustor’s diminished mental capacity will not be reversed and will only progressively get worse, and therefore the trust has become irrevocable and the beneficiary is entitled to receive a copy of the trust.
In rare cases, this is an example of why a trust doesn’t always “avoid probate” or, more accurately, avoid the probate court. A beneficiary desiring to see the trust might petition the court for that right, but may meet strenuous objection from the trustee who doesn’t feel that it’s proper to disclose the terms of the trust. The trustee will argue that the trustor’s diminished mental capacity is not substantial and that future medical treatment and proper medications will improve his/her capacity.
You can see how litigious this can become, with both sides presenting expert medical testimony to convince the judge of the trustor’s capacity (or lack thereof). If a trust has become irrevocable (either because of death or mental incapacity), then a beneficiary who wants to see the trust can simply make a written request to the trustee. If the trustee refuses, then a petition can be filed with the court asking that the judge order the trustee to provide a complete copy of the trust.
The vast majority of revocable living trusts run smoothly, and don’t require any court intervention.
Whether you actually need a trust, or need an attorney to help create one, are topics discussed throughout my Living Trust Advocate website. After reading (and studying) the information provided on that site, you may find that you don’t need a trust. Or, you may decide that you’re one of the millions who could benefit from having a simple living trust. But you’ll find that the content on that site provides you with probably much more information than a private attorney will reveal to you (or even know).