How to Find Out if a Trust Exists

If you think a trust exists, finding it is important to ensure it is distributed properly. If you are a beneficiary to that trust, it ensures you get your fair share.

A trust is unlike a will or other similar document as it does not need to go through the probate process. Because it is exempt from probate proceedings, a trust does not become a public record. This is an issue when trying to locate the original trust document.

What is a trust?

A trust is assets and liabilities held by a trustor, the person who creates the trust, and transferred to a beneficiary through that trust.” (Portico Mgmt. Grp., LLC v. Harrison (2011) 202 Cal.App.4th 464, 473.) The trustor holds legal title to the property in a trust before it passes to the beneficiary. This trust must be administered by a trustee who ensures the property and assets are distributed according to the trustor’s wishes. (Higgins v. Higgins (2017) 11 Cal.App.5th 648, 662.) This is important because a trust is usually set up to be administered following the trustor’s death. 

If the trust is established during the trustor’s lifetime, the trust property remains the trustor’s property up until their death. (Estate of Giraldin (2012) 55 Cal.4th 1058, 1065-66.) This form of trust is a revocable inter vivos trust which allows the trustor to alter the trust and its beneficiaries while they are still alive. The trust then becomes finalized and irrevocable after the trustor’s death. 

This type of trust is administered by the trustee following the trustor’s death. This is done privately, without going through probate. As such, it is on the trustee to locate the trust document if they are not already in possession of it. The beneficiaries will then be notified and receive a copy of the trust when the trust is administered. 

When can you locate a trust through public record?

Testamentary Trust

A testamentary trust is created by a trustor’s will. A will is admitted to probate court to go through the probate process. The court will order the trust to be established, making it public record. The court will confirm its validity, scope, and interests passing to the trustee. (Wells Fargo Bank & Union Trust Co. v. Superior Court (1948) 32 Cal.2d 1, 8.) This trust will then supersede the terms of the will. Similar to an inter vivos trust, the testamentary trust designates a trustee to administer it. (In re Callnon’s Est. (1969) 70 Cal.2d 150, 156.)

The probate process makes the trust public record and thus easily discoverable. If you know someone had a will and think that will created a trust, you can check through public court records for more information regarding the associated probate proceedings.

Trustee Misconduct

Trusts create a fiduciary duty in the trustee. (Hearst v. Ganzi (2006) 145 Cal.App.4th 1195, 1208.) A trustee is necessary to administer trusts because their fiduciary relationship with the property prevents the trust from being sued or holding title to property. (Greenspan v. LADT, LLC, 191 Cal.App.4th 486, 521.) The trustee must adhere to their duties and specific fiduciary duty to administer the trust properly. A trustee is required to serve beneficiaries and heirs with notice of the trust. (Cal. Prob. Code. § 16061.7.) This means they must serve notice when the trust is being administered or when the trust becomes irrevocable. 

A beneficiary concerned about how a trustee is administering the trust can bring a claim for trustee misconduct if they feel the trustee has breached any of their duties. (Triplett v. Williams (1969) 269 Cal.App.2d 135, 137-138.) This type of claim, like all court claims, would become public record. By association the trust’s existence would become public record.

Trust Involving Real Estate

When putting property like a home in trust, the trustor must transfer title to the property to the trustee. This is done by a deed which is recorded in the county recorder’s office. The deed designates the trustee and the beneficiary. (Gov. Code, § 27321.5.) After the trustor’s death, the trustee would then transfer the title again to the proper beneficiary or beneficiaries.This deed is required to prove ownership and is usually recorded. Because deeds are usually recorded, the trust deed can be found through your county recorder’s office. 

When might a court inform you a trust exists?

The court can also create trusts known as resulting trusts and constructive trusts. (Kenneally v. Bank of Nova Scotia (2010) 711 F.Supp.2d 1174, 1190.) In the case of a resulting or constructive trust because they are imposed by the court for equitable reasons there is no need or requirement for a trust document. (Martin v. Kehl (1983) 145 Cal.App.3d 228, 238.) Under these types of trust the court will identify and enforce beneficial rights and the trustee is only expected to hold onto and then convey the property. (Haskel Engineering & Supply Co. v. Hartford Acc. & Indem. Co. (1978) 78 Cal.App.3d 371, 375, 378.) This is more passive than a regular trust. In finding the existence of such an involuntary trust, you would receive notice through the court proceedings whether you are the trustee or beneficiary. If you are an unrelated third party, you could find this trust through public court records.

What are some examples of how you might locate a trust?

For example, Julie was designated as the trustee for the trust. She needs to do her best to locate this trust document so the trust can be distributed in accordance with her duties. As the trustee, Julie likely met with the trustor before their death and knew who helped draft the trust document and where it was located. If she did not, she would need to ask other relatives of the trustor about the document’s location or ask anyone who helped draft it like a notary or attorney. 

If Julie knew the trust included real estate, she could look for evidence of the trust in public record by checking with the county recorder office for the deed.

Alternatively, Shawn is the son of the grantor. He has suspicions that there was a trust he is a beneficiary of, and remembers his father, the grantor, making comments about it before his death. Shawn could undertake the same steps as Julie to find the document. 

However, because he is a beneficiary, if the trust is administered properly, he will get a copy of the trust document and have what he is entitled to under the trust distributed to him. Shawn could only get a copy of this document after his father’s death. 

Conclusion

If you think there might be a trust entitling you to real estate or you are a beneficiary and want to dispute your claim to real estate we may be able to help. If you want to partition trust property we can help. At Underwood Law, our partition attorneys can help you navigate your partition action efficiently and with care. We are here to help.