Some people, quite naturally, do not want their family to know the contents of their Revocable Living Trust until after they die. So just who gets to see a copy of a person’s Living Trust, and when do they get to see it?
Initially the Settlor(s) and his or her Attorney are the only ones who see the Revocable Living Trust; presuming that the Settlors(s) is also the initial Trustee(s). While the Trust is revocable the Trustee has no duty to provide a copy of the Trust to any beneficiaries because the beneficiaries’ rights can still be taken away by the Settlor.
Is a Trust recorded? No, transferring real property into the Trust only requires that a Trust Transfer Deed is recorded; the Trust is not recorded. A Trust Transfer Deed only discloses the existence of the Trust and the identity of the Trustee.
If the real property being transferred is subject to a Deed of Trust (security interest) then the secured lender may sometimes ask to see a copy of certain portions of the Trust or a Trustee’s Certification of Trust. Because transfering real property into one’s living Trust is now so commonplace this is often ignored. Nonetheless, the gifts under the Trust do not have to be disclosed.
When transferring title to a financial account (e.g., a brokerage or bank account) into a Trust the financial institution will want to see who are the authorized current and possible future Trustees; whether the Trust is revocable (or irrevocable); and are the Trustee’s powers.
If and when the Settlor becomes incapacitated the Trust typically becomes irrevocable because the settlor, who can amend or revoke the trust while competent, is then unable to revoke or amend their Trust. The beneficiaries then have vested interests in the Trust. Accordingly, the beneficiaries are entitled to a complete copy of the Trust and may request information regarding the assets, liabilities and administration of the Trust.
Sometimes, however, the incapacity of a Settlor does not make the Trust irrevocable. The Trust may allow someone else — such as a power holder or Trust protector — the power to amend or revoke the Trust when a living settlor becomes incapacitated.
When the Settlor dies not only the Beneficiaries but the deceased Settlor’s heirs, even those who are disinherited, are each entitled to a complete copy of the Trust. The Trustee is required to provide them with a notice of such right.
Because all beneficiaries are entitled to a complete copy of the Trust, settlors may choose to make small gifts to friends and family (who are not also heirs) outside of the Trust so they do not later become entitled to request a copy of the Trust. A Will may be used to make gifts to such beneficiaries. So long as less than a total of $150,000 in gross values passes under the Will no probate is required.
A Trust becomes open to the public when the Trustee petitions the Court for an order regarding the Trust. A copy of the Trust must be attached to the petition and served on all persons who receive notice of the proceedings. Moreover, the Trust becomes part of a Court file and open to inspection by the public.
While a Trust is a confidential document it is not a private document. Beneficiaries and heirs (even disinherited heirs) are entitled to a complete copy of the Trust when the Settlor dies. Others, such as banks and creditors may have an interest in seeing a copy of the Trust. They typically only require seeing limited portions of the Trust as relevant to their interests. A Trustee’s certification of Trust, which does not disclose any gifts, should suffice.