Who is Entitled to See a Trust When the Settlor Dies?
BENEFICIARIES AND HEIRS CAN REQUEST “THE TERMS OF THE TRUST” AFTER A SETTLOR DIES
California Probate Code ( § 16061.5) requires trustees to provide a true and complete copy of the terms of (a) an irrevocable trust, or (b) the irrevocable portion of a larger trust to any of the following persons after a settlor dies:
- Any trust beneficiary who requests a copy
- Any of the heirs of the decedent (settlor) who request a copy.
In addition, the trustee must provide a copy of the terms of the trust to beneficiaries who so request after there is a change to the trustees of the trust.
DO BENEFICIARIES HAVE A RIGHT TO SEE THE TRUST AGREEMENT?
Yes and no.
After the death of the settlor, beneficiaries (and heirs, when appropriate) have the statutory right to receive a copy of “the terms of the trust” – which is not precisely the same thing as the trust agreement. In many cases, trustees do respond to a request for disclosure of the trust terms by sending a copy of the entire trust agreement. However, technically speaking, the “terms of the trust” that must be disclosed upon the death of a settlor (when the settlor’s death makes part or all of the trust irrevocable) means either:
- The trust instrument (i.e., trust agreement)
OR
- The provisions of the trust agreement that are (a) in effect at the time of the settlor’s death, and (b) describe or impact the part of the trust that became irrevocable upon the (relevant) settlor’s death.
- Signature pages of the trust agreement
- Amendments to the trust agreement
- Instructions to the trustee that impact administration of the trust, and powers of appointment.
However, the “terms of the trust” do not include
- Provisions or documents that were not intended to survive, or to control the trust, after the trust ceased to be a revocable trust
- Any portions of the trust instruments or trust agreement that were superseded or replaced by (a) a restatement, or (b) an amendment that took place before the settlor’s death.
The trustee has no obligation to provide those items to heirs or beneficiaries, unless a court orders otherwise for some reason or unless unusual circumstances merit disclosure for other reasons. However, the statutory obligation to provide a copy of the trust terms upon request after the death of a settlor, in and of itself, does not require disclosure of those items.
WHAT DO I DO IF THE TRUSTEE WON’T DISCLOSE THE TRUST TERMS?
Consult a lawyer for an evaluation of the situation and your legal rights. Do not use this article, or any other Internet source, as a way to “self-diagnose” your legal rights and claims. The law of estates and trusts is complex, and governed by many rules. Consult a lawyer promptly if you want to learn how those rules apply to you.
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Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR OR ROSS LAW AND ANY PERSON. Your legal rights and experiences may vary. Never use an online article (including this one) to evaluate your legal rights or claims. Consult an experienced attorney promptly to obtain a personalized evaluation of your claims, potential damages, and the various legal rights and options available to you.
You may lose or compromise your rights if you delay in consulting legal counsel. Most legal claims (and defenses), as well as legal and court procedures, are complicated and fact-dependent. If you believe you have a claim against someone who injured you, a lawyer who represented you in a previous lawsuit, or any other legal claim, consult an experienced lawyer immediately for an evaluation of your individual rights and claims.
