As an experienced probate attorney, this is by far the question I have been asked most frequently. In so many cases, potential beneficiaries are concerned that might have been cut out of a trust unfairly. They call me, asking me what they can do about being cut out of the trust.
In every one of these cases, the first thing to be done is to obtain a copy of the trust.
And, yes, both a “beneficiary” and an “heir” of a decedent are entitled to a copy of the trust. According to California Probate Code 16060.7, “On the request of a beneficiary, the trustee shall provide the terms of the trust to the beneficiary unless the trustee is not required to provide the terms of the trust to the beneficiary in accordance with Section 16069.” Further, pursuant to Probate Code 16061.5 the trustee is required to provide a copy of a trust to “[a]ny beneficiary of the trust who requests it, and to any heir of a deceased settlor who requests it, when a revocable trust or any portion of a revocable trust becomes irrevocable because of the death of one or more of the settlors of the trust…”.
The short answer is that yes, beneficiaries and heirs are entitled to a copy of the trust document. But there are some nuances to look at.
Who Can Get A Copy Of The Trust?
The most important note from this statute is that “beneficiaries” are entitled to receive the terms of a trust. This is not a right granted to anyone, but only beneficiaries.
The other important considerations come from California Probate Code Section 16069. This section limits the right to obtain the terms of a trust to irrevocable trusts. This means that, in a revocable trust (a trust in which the person establishing the trust can revoke it as long as he or she is still alive), the beneficiary does not have the right to insist on seeing the trust.
In revocable trusts, if the person holding the power to revoke the trust has been deemed incompetent, or if the trustee and the beneficiary are the same person, then the beneficiary can obtain the terms of the trust.
In Irrevocable Trusts
Most of the cases where this question arises involve irrevocable trusts, usually in probate or the estate administration process after the person leaving the assets has passed. The beneficiaries or heirs want to know if they are included in the trust, and they often want to know the specific terms of the trust, as well.
How Can You Obtain A Copy Of The Trust?
In most cases, obtaining the terms of a trust is extremely simple. Just ask. If you ask the trustee, that person is obligated to furnish you the details of the trust.
To make this request, you can either send a formal letter to the trustee and keep record of it in case you need it in the future, or you can have an attorney from our firm write and send this letter for you.
With some occasional exceptions and nuances, from the time you make the request, the trustee has 60 days to furnish the trust terms to you. Then, if this has not been done, you can go to court and force the trustee to give you this information.
Many people become concerned that a trustee (who may be a sibling or other relation) has cut them out of a trust, but unless you are able to actually see the trust, you won’t be able to know for sure. In fact, I have seen numerous cases where a person calls me very concerned about being cut out of a trust, then we obtain the trust terms, and it turns out they are actually named beneficiaries. Their concern was for naught because they hadn’t yet seen the trust.
If you have any concern at all about a trust, the first step if always to ask for the terms of the trust from the appointed trustee. You can do that on your own or we can help you with that.
The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.
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