Elder-Law-Advocate

Beneficiary’s Right to Receive Copy of Trust

If you’re named as a beneficiary of a California trust, are you entitled to receive a copy?  The answer depends upon whether the trust is revocable or irrevocable.

If the trust is irrevocable, then the answer is generally yes.  Irrevocable trusts mean just that – they can’t be changed or amended.  However, there are some exceptions where, for example, the trustor, trustee 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 “etched in stone”, the law recognizes the named beneficiaries as having certain rights, including the right to receive a copy of the trust.

Conversely, revocable trusts may be amended or revoked by the person who created the trust (“Trustor”) and the beneficiaries have no assurance that the trustor won’t later change his/her mind and remove one or more persons as beneficiaries.  Since their interest is not vested, they have no right to receive a copy of the trust.

However, a revocable trust will become irrevocable when the trustor passes away.  Only the trustor (not the “trustee”) has authority to make changes to a revocable trust.  When the trustor dies, then the trust becomes etched in stone.

A revocable trust may also become irrevocable if the trustor becomes mentally incapacitated and no longer able to understand what a trust is, what assets s/he (and the trust) owns, or who the beneficiaries are (or could be).  At this point, a beneficiary could argue that the trustor’s diminished mental capacity will not be reversed and will only progressively get worse, and therefore 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 doesn’t always “avoid probate” or, more accurately, avoid the probate court.  A beneficiary desiring to see the trust might petition the court for that right, but may meet strenuous objection from the trustee who doesn’t feel that it’s proper to disclose the terms of the trust.  The trustee will argue that the trustor’s diminished mental capacity is not substantial and that future medical treatment and proper medications will improve his/her capacity.  You can see how litigious this can become, with both sides presenting expert medical testimony to convince the judge of the testator’s capacity (or lack thereof).

If a trust has become irrevocable (either because of death or mental incapacity), then a beneficiary who wants to see the trust can simply make a written  request to the trustee.  If the trustee refuses, then a petition can be filed with the court asking that the judge order the trustee to provide a complete copy of the trust.  If this step is required, then the judge also has the authority to order that the beneficiary’s attorney fees and court costs be paid by the trustee.

Elder-Law-Advocate