Losing one or all trust documents occurs more frequently than most people realize. Without the trust documents, there is no way to prove who has been named as a trustee and beneficiary or what the terms of the trust entail. However, what makes losing these files so problematic is that as a trust is a private agreement, they are not recorded anywhere. This means that you cannot go to a courthouse or probate court and receive records of your documents as you can with most other estate planning documents.

How do you Prove a Trust Exists and Determine a Trustee Without a Copy of the Trust?

If you do not have a copy of the trust documents, proving that it even exists can be a difficult task. Ideally, the attorney who drafted your trust documents will have kept a record of the files. However, if the attorney has retired, died, or simply does not have a copy of the documents, proving the trust becomes much more difficult.

In a situation where your attorney does not have a copy of the trust documents, your best course of action if likely to hire another lawyer. This lawyer can file a declaratory order with the court which will provide clarification on the uncertainty of the trust. After your attorney files the order, the court must decide whether the trust actually exists and who the trustee is. If there is no current trustee, the court will appoint one. While you may not have the trust documents, it can be helpful to your attorney if you can find any evidence proving that the trust did actually exist. Evidence of a trust can be found through other sources such as a deed or a contract. However, because there are no original trust documents, the court cannot simply say that from the deed or contract that the trust did exist. Instead, they will consider these documents when determining how to rule.

How to Properly Store Trust Documents?

The best way to store original trust documents is to keep them in a fireproof safe or wherever else you keep your other important files. However, if you wanted to be extra safe, you could open a safe deposit box to keep these files in. One important note is that you must make sure that you name your successor trustee or other individual as an authorized individual to access the safe deposit box so they can access those documents if you become disabled or pass away. Otherwise, your successor trustee would need to obtain a court order to access the safe deposit box and its contents. For example, you may want to authorize access to your parents, siblings, or significant other so that they can access the documents if you one day cannot.  

Contact Our DC Law Office for More Information

Finally, for more on what to do if you lose your trust documents, contact us at 202-803-5676. You can also directly schedule a consultation with one of our skilled attorneys. Additionally, for general information regarding estate planning, check out our blog.