Legal Question in Wills and Trusts in California
My parents have a irrevocable trust that my sibling and I will become co trustees of upon the death of my mother (which will be soon as she is terminal) my father has already passed in late 2010. I have been shown the trust back in the 90's and it was kept in my parents home the entire time (since 1994) Our Attorney who wrote the Trust has also passed away.. I have recently had to have the trust copied for various reasons i.e.: title documents on properties, new trust bank accounts, etc. I have noticed that a section of the orignal trust in missing, a very important part concerning my sibling who is a co trustee and his addiction problems if they continue while a trustee. My question is how do I go about obtaining the true original trust, since my parents attorney has passed? What can my mother do to insure that the original trust is followed as my sibling is becoming a problem already and my mother hasn't even passed away yet. I also have a sibling with a special needs trust and I want to ibe able to insure that her needs will be met in her lifetime, the estate is almost 4 million.
2 Answers from Attorneys
If your mother is still up to it, this situation cries out for her to sit down with a tax savvy trust attorney and to go over the old trust document and to either make any necessary amendments or make a new trust as the missing part of the old trust sounds like a big problem.
Even if you spend some money and time either thoroughly reviewing the old trust and making amendments or making a new trust and transferring assets from the old to the new trust, it is likely to be money well spent to avoid problems with a $4,000,000 estate. Relevant California and U.S. laws likely have changed since the old trust was written.
I am sorry your mother is so ill, but I agree with the previous answer. Now is the time to try to ensure that your parents estate plan is going to be carried out as they intended. Presumably your mother is still the trustee. Depending on how the trust was drafted, 1/2 may already be irrevocable and your mother may have retained control as to the other 1/2. If your mother is willing and able she would need to hire an attorney to assist her in sorting out the true contents of the trust instrument. Once she becomes incapacitated then the entire trust will become irrevocable and the successor trustees will need to take over. If necessary, the successor trustee(s) may need to Petition the Court for Instructions if they believe that some of the trust instrument is missing.
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