Accessing a Copy of a Trust
A Trust is a private document that is usually not filed anywhere and not presented to a Court unless there is litigation involving the Trust.
We often get a call along these lines: “My father died and I believe your firm did a Trust for him and I would like a copy of the Trust.”
BUT, because the father, and not the son, was our client we would be violating our client’s confidence by giving the son a copy of his father’s trust, unless:
- He can prove his father has died, AND
- He is either a Successor Trustee OR a beneficiary of the Trust upon his father’s death.
In other words, if Dad executes a Trust providing for nothing to his Son, his son has no right to see a copy of the Trust even after Dad dies. (The only exception would be if Son files a lawsuit alleging, for example, that Dad’s girl friend used undue influence to get Dad to do a Trust leaving everything to Girl Friend instead of to Son. And then Son would need a Court Order to get a copy of the Trust.)
When You Execute a Trust to Whom Should you Give Copies?
In many cases a person who executes a Trust may want to give copies to all Beneficiaries. For example, Mom and Dad have 3 adult children that each is the parent of. The Trust might provide for an equal distribution to all 3 adult children after the death of Mom and Dad. It would be very logical to give each adult child a copy of the Trust. But supposed Mom and Dad want to distribute their money unequally to the 3 kids for various reasons. They might not want the adult children to know about the uneven distribution until they are both gone. In such a case it might make sense to give a copy only to the favored child or the two favored children, or a close family friend. In any event, they should be sure to give a copy to their Successor Trustee (and almost surely to their alternate Successor Trustee.)
In Nevada lawyers only have a duty to keep client files for 7 years. However, attorneys who do Trusts and Wills are going to keep copies much longer. Still, the person who does a Trust should make sure at least some beneficiaries have a copy of the Trust.
What Happens if All Copies of a Trust Are Lost?
As a practical matter, lawyers who write Trusts also write a summary of who the Successor Trustee(s) is/are. This is a notarized document signed by the original Trustees and may be called “Trust Abstract,” or “Certificate and Affidavit of Trust,” or some similar name. In most cases the Successor Trustee can access Trust assets from institutions as long as they have a death certificate for each original Trustee and notarized Trust Abstract showing they are the Successor Trustee. But without there also being an actual Trust showing who gets what, people expecting that they are beneficiaries could sue over the distribution if they disagreed with it.
If both the Trust and the Trust Abstract are lost, there would probably need to be a probate to distribute the assets under the law of intestate succession which is the law of who gets what if there is no Will.