Not all trust administrations are smooth and easy. Sometimes a trustee runs into difficulties that need to be overcome in order to complete the process. One of the most challenging problems of a trust administration is the loss of the trust document altogether. Without the trust document, the deceased's property may not be distributed according to the trust, but rather according to the laws of intestacy.
But don't panic. If you can't find the trust, here are a few options that might help.
Conduct a thorough investigation
Obviously, you should search the house from top to bottom. But also search anywhere else the deceased may have kept it (i.e., an office, a storage facility, a vehicle, a friend or family member's house, etc.). Ask around to anyone you think might have been given a copy. Many people give the trustee or even the beneficiaries a copy of the trust for safekeeping. If there are trust bank accounts, it's possible the financial institution may have kept a copy of the trust or the Certification of Trust.
Contact the drafting attorney
If you can locate the original drafting attorney, he or she may have kept a copy as well, or know where to find one. If you don't know who the drafting attorney is, the deceased may have old business cards or correspondence with their name on it. Additionally, if the deceased owned real property, the recorded trust transfer deed (which you can get from the county recorder) may have the attorney's information on it.
Often times the drafting attorney will be retired so their contact information may be out of date. You may need to hire an investigator or scour online databases to find them. If they are deceased, you can still try to contact the representative of their estate to see if the files are still around.
Petition the court to recreate the trust
If you still can't locate the trust, you may be able to petition the court to “recreate” and confirm it. You will need some kind of evidence of its existence (like a deed referencing the trust) as well as its terms. If anyone was there to witness the signing, and was familiar with the terms, they might be able to testify or provide a declaration. Similarly, if the drafting attorney remembers the terms, that may also help. It will ultimately be up to the court to determine if this remedy is appropriate.
Losing the trust document can be a huge inconvenience when it comes to administering a trust. But these options may help you to solve or get around the problem. If you decide to petition the court, your chances of success will be greater if you have experienced legal counsel to represent you.
Helix Law Firm can help with trust administration and other issues
If you are a trustee in charge of a trust administration, we can help you through the process. We understand that there are often snags along the way. As your legal counsel, we will help identify these and find appropriate solutions as we go.
If you need an estate plan, we will draft one according to your needs (and we will make sure there are multiple copies, to prevent the situation described above).
If you're interested in learning more about how Helix can help, please call us at (619) 567-4447 to schedule a free consultation.