How to Find Out If a Trust Exists and Where to Locate It

Do you believe you may have been named in a trust and are wondering how to find out if a trust exists in California or Texas?

If you suspect a loved one passed away with a trust in place, it’s crucial to take the necessary steps to locate this document. Trusts are inherently private, designed to bypass the probate process, and are not typically part of public records, often making them more challenging to find than a will. However, if you believe you may be named as a beneficiary or trustee, it may be worth your time and effort to secure a copy of the trust.

This guide will walk you through how to find out if a trust exists, what to do if a trust appears to be lost, and valuable ideas to help you locate a trust after the trust creator’s death. Whether you’re trying to locate a trust in California or Texas, this process involves understanding the unique aspects of trusts and why locating a trust can be challenging.

What is a Trust, and How Does it Work After the Settlor’s Death?

A trust is a legal arrangement where one person or entity, known as the “trustee,” holds the title to an asset and manages it for the benefit of another person or people, known as the “beneficiaries.” After the death of a trust’s settlor or creator, the named successor trustee takes over the management of the trust and distributes the assets to the beneficiaries as outlined in the trust instrument. 

Are Trusts Publicly Recorded?

As you search for trust documents, you might wonder whether they are recorded or filed somewhere. While this is a reasonable question, it’s important to understand that trusts typically bypass the court system entirely and are not matters of public record. Unlike wills, which are often filed with the courthouse, trusts are designed for privacy and are not recorded with the county clerk or courthouse.

Why Are Trusts Not Public Records

Trusts are generally not part of the public record because they don’t require court involvement to be administered. Only the trustee and the trust document are needed to begin managing the trust, allowing assets to be distributed to beneficiaries without court oversight. While this privacy is an advantage, it also means that if a trustee fails to provide copies of the trust to beneficiaries, they cannot easily access the documents as they likely would with a will.

There are some exceptions where a trust might become part of the public record. For instance, if the trust includes real estate, the deeds transferring property titles to the trustee may be recorded with the county clerk. While this doesn’t mean the trust itself is recorded, it can confirm the trust’s existence. Additionally, if the trust has been involved in litigation, such as property disputes or trustee misconduct claims, it may become part of the public record. Testamentary trusts, created through the terms of a will, are also public records because they are formed during the probate process.

Occasionally, public deed records may contain a brief summary of trust terms. This document may be called a certification, certificate, memorandum, or abstract of trust. Regardless of the document’s title, these documents are not substitutes for the actual trust agreement and may be outdated by a trust amendment or modification. They can, however, be a good starting point for locating the actual trust agreement. 

Who Might Have Information About the Trust’s Location?

When searching for a trust, several parties could either have the document or know where it is located. The successor trustee, appointed by the settlor to manage the trust after their death or incapacitation, is the most likely person to have access to the trust. If the successor trustee doesn’t have the document, professionals involved in the trust’s creation, such as an estate planning attorney, financial advisor, or accountant, may have the information. Additionally, close relatives of the decedent, such as a spouse, siblings, or children, might know where the trust is stored, whether it’s in a safe, safety deposit box or another secure location.

Who Has a Right to Copies of the Trust?

In California, beneficiaries and heirs of the decedent are entitled to receive copies of the trust from the successor trustee once the settlor dies and the trust becomes irrevocable. They are not entitled to copies of the trust before that.

If a creditor or bank has an interest in a trust, they also may be entitled to copies of the trust.

In Texas, trustees must provide beneficiaries with full disclosure of all material facts that might affect the beneficiaries’ rights. In practice, this usually means providing a copy of the trust. Unlike California, however, this right may apply before the trust becomes irrevocable and is not automatic.

If the trustee fails to provide interested parties with copies of the trust, it is crucial they work with a trust litigation lawyer to obtain them. Without examining the trust, they will not know whether the document is valid and what assets they are entitled to under it. In other words, it will be difficult for them to enforce their rights.

How to Locate a Trust

If you believe a decedent died with a trust, it’s essential to begin your search, though it may not be straightforward. Challenges including misplaced documents, inaccessible safety deposit boxes, or estate planning attorneys who destroyed older records can complicate the process. However, if you are the successor trustee, it is your responsibility to locate the trust. Failure to do so could result in accusations of fiduciary misconduct.

If you’re unsure how to find a trust, knowing details like the trust’s name, the city or county where it was created, any documents referring to the trust, or the contact information of involved parties can make your search easier.

4 Common Places Trust Documents are Found

To locate trust documents, consider checking with the following people and places. You may uncover valuable insights or even discover the documents themselves during your search. Consider contacting the following people and and checking in the following places.

1. Estate planning attorney and accountant

If the successor trustee is unsure how to determine if a trust exists for a decedent, the estate planning attorney or one of the decedent’s financial and legal professionals might have the answers.

Although there is a chance the decedent used software to create their trust, it is more likely that those with significant assets worked with an estate planning attorney or financial planner or CPA during their estate planning process.

In such cases, these professionals may know where the trust documents are stored or may even have copies themselves. Estate planning attorneys or financial professionals often hold the original trust documents because they were involved in drafting them or because the decedent trusted them to securely store the documents until they were needed.

Attorneys and other professionals may have ethical obligations of confidentiality, however, which may pose a problem when searching for the trust. In that case, it may be necessary to hire counsel to subpoena or negotiate disclosure of the trust. 

2. Safety deposit boxes or safes.

After creating a trust, it’s common for the trust creator to store the document in a safety deposit box at their bank or in a personal safe at home or the office. Access to a decedent’s safety deposit box depends on who owns the box. Many decedents share their safety deposit boxes with their spouses, who are considered joint owners and likely have a key to access the box.

If the safety deposit box was solely owned by the decedent, access is still possible, but only by the executor or administrator of the estate. According to California Probate Code section 331, they will need a certified copy of the decedent’s death certificate and proof of identity to gain entry. It’s advisable to locate the key to the safety deposit box to avoid paying the bank potentially hundreds of dollars to unlock it.

If the safety deposit box is in the name of the trust, the decedent may have provided the bank with a copy of the trust when opening the box. In such cases, the successor trustee should be able to access the box by presenting a certified copy of the settlor’s death certificate and proof of identity.

Texas offers different procedures for examining safe deposit boxes. According to Texas Estates Code section 151.001, a probate judge may order a bank to open the box if the interested party shows the judge that the safe deposit box may contain a will. Texas law also allows banks to open safe deposit boxes for the decedent’s spouse, parent, adult descendant, or executor under Texas Estates Code section 151.003.

Gaining access to a decedent’s home or office safe can be more challenging unless someone, such as a spouse or child, knows the combination. If the combination is unknown, they may need to contact a locksmith to open the safe.

3. Close relatives or friends of the decedent.

This approach relies on your familiarity with the decedent and their closest associates. Those who were closest to the decedent at the time of their passing are most likely to know where to find a copy of the trust document.

For instance, if the decedent lived with someone, such as a spouse or partner, they might know where to look or have been informed about where the trust documents are kept. The decedent may have also shared the location of their trust with an adult child or a trusted business partner.

4. The decedent’s home, office, and storage units.

Although most settlors are careful to store their trust documents in a secure location, some may leave them in an office filing cabinet, a drawer, or even in a storage unit.

The key is to be thorough in your search when trying to locate a trust. If you’ve exhausted all efforts and still can’t find the document, it’s possible the decedent never executed a trust, or they may have lost or destroyed the one they had created.

How Can You Locate a Lost Trust?

If you are the creator of a lost trust, you may be able to look through your records to find whether you had an estate planning attorney or financial adviser. Perhaps you made a payment to them using a check or received correspondence from them via mail or email. Any of these documents could prove useful in helping you find where you kept your trust documents or securing copies of them.

If you have been searching for a decedent’s trust but haven’t had any luck finding it, then it could be that, the decedent didn’t make a trust, someone is hiding the trust, or the decedent intentionally destroyed the document to dispose of their assets through other means, such as though a will or intestate succession. 

How RMO Lawyers Can Help?

It’s best to discuss a possible lost trust with a trust litigation lawyer before giving up on your search, as they may be able to use creative means to track it down.

If you suspect the trust is missing and there may be some malicious interference going on to hide your intended inheritance, it’s worth reaching out to RMO Lawyers to schedule a free consultation.