Hide and Seek

Hide and Seek

Observations on How People Store Their Planning Papers

Every estate attorney has heard the story recited in her conference room: “We know Mom and Dad did a trust; we’ve looked everywhere, but we can’t find where they kept it. And their lawyer died before they did.”

Estate attorneys hearing these sad stanzas respond as best they can, but not with much optimism. Staff members write and call entities that had any contact with the trust—banks, insurance companies, credit unions, stock brokers, notaries, or real estate agents among others. The firm will likely contact the landlord where the parents’ trust attorney kept offices prior to passing. Some attorneys check with local lawyer contacts in the Estate Planning Bar, or with the surviving spouse of the deceased attorney, to find the name, if any, of anyone who may have acquired the late lawyer’s firm after he or she left.

Regrettably, most efforts are unlikely to lead to the trust. One of the concerns contacted may produce a copy of the trust, but without the original trust, the trust administration will probably require some involvement with the Probate Court to allow the assets to pass to the parents’ family. This may mean that the terms of the trust get displaced in favor the Probate Code’s list of beneficiaries, including anyone that Mom and Dad intended to disinherit.

Sound practice should include both advising children of Mom and Dad secured their estate documents, and how to gain access to those documents. Simply put: assure that each of the successor trustees listed in the trust instrument has instructions on where to find and how to reach the estate documents. When a parent wants to discuss the terms of a trust with an adult son or daughter, she expects to be able to readily retrieve the book or the packet from a place that is reasonably reached, but not a spot on the book shelf convenient for visiting aunts and uncles to peruse if they are sleeping on the sofa.

Many people use their safety deposit boxes to store their trusts. These locations are certainly secure, but they do not meet the test of “accessible.” There are times when a family needs to get to estate documents when the boxes are not available. And when a family member dies, many banks and security companies have strict requirements about the access to safety deposit boxes, in some cases even including the presence of a law enforcement official at the time of the opening. This interferes with both the convenience and the privacy which families expect from their family trusts.

A locked file cabinet in the family den provides a good alternative for the home of the trust: it is accessible but secure, central but free from wondering eyes. Two steps complete this location as a good alternative for the planning document—first, reminders for Junior or Juniorette that the trust is in the cabinet, and second, a fixed, permanent and communicated location for the key to the file cabinet, one that provides access to the drawer when the time comes for the next generation to put the trust to its intended use.

Every family is free to decide which is more important, security or access. But whichever variable weighs more heavily for any household, every parent should assure that his or her successors know where the documents are kept, and how to get hold of them. Remember: courts are free, sometimes required, to hold that a trust which is missing is a trust which is revoked, which means…Probate Time.

Donald A. Hunsberger

To connect with Donald A. Hunsberger, Esq., call (714) 663-8000 or visit hunsbergerlaw.com. Hunsberger Dunn LLP is located at 14751 Plaza Drive, Suite G in Tustin.

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