Who has the right to see your living trust?
As a California attorney for 30 years, I am often asked the question:
Does anyone have the right to receive a copy, for example, of my parents’ living trust before one or both of them have passed away?
The answer depends on whether your trust is revocable or irrevocable.
If the trust is irrevocable, the answer is generally yes. Irrevocable trusts mean just that: they cannot be changed or amended. However, there are some exceptions where, for example, the settlor (the person who creates the trust), the trustee (the 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 “set in stone,” the law recognizes that named beneficiaries have certain rights, including the right to receive a copy of the trust.
On the contrary, revocable trusts can be modified or revoked by the person who created the trust (the settlor) and therefore the beneficiaries have no guarantee that the settlor will not change their mind later and eliminate one or more people as beneficiaries. Since their interest is not “vested,” they are not entitled to receive a copy of the trust.
However, a revocable trust will become irrevocable when the settlor dies. Only the settlor (not the “trustee”) has the authority to make changes to a revocable trust. When the settlor dies, the trust is “set in stone.”
A revocable trust can also become irrevocable if the settlor becomes mentally incapacitated and can no longer understand what a trust is, what assets it owns (and the trust), or who the beneficiaries are (or could be). At this point, a beneficiary could argue that the settler’s diminished mental capacity will not be reversed and will only get progressively worse and thus 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 does not always “avoid probate” or, more accurately, avoid probate court. A beneficiary who wishes to see the trust may petition the court for that right, but may encounter a strong objection from the trustee who does not believe it is appropriate to disclose the terms of the trust. The trustee will argue that the settlor’s diminished mental capacity is not substantial and that future medical treatment and appropriate medications will enhance his capacity.
You can see how litigious this can get, as both parties present expert medical testimony to convince the judge of the settlor’s ability (or lack thereof). If a trust has become irrevocable (either by death or mental incapacity), then a beneficiary who wants to see the trust can simply make a request in writing to the trustee. If the trustee refused, then a petition can be filed with the court asking the judge to order the trustee to provide a complete copy of the trust.
The vast majority of revocable living trusts run smoothly and do not require any judicial intervention.
Whether you really need a trust or need an attorney to help you create one are covered on 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 are one of the millions that could benefit from having a simple living trust. But you will find that the content on that site probably provides you with much more information than a private attorney will reveal (or even know).
