Estate Planning: Do You Know Where Your Trust is Tonight?

 Periodically (and unfortunately all too often) we get calls from clients:
“Do you have our original, signed living trust documents?”
“No, I’m sorry.”
“Are you sure?
“Yes. We make it a practice not to retain clients’ original documents.”
“Could you just look in your file, to be sure?”
“Gladly. One moment, please…. I’m looking at your file. The day you signed all your trust and related estate planning documents, I gave you the originals and a set of copies. All I have is a set of photocopies and a copy of the cover letter I gave you, when you signed everything. In that letter, I suggested that you put the originals in a safe deposit box, and that you keep the set of copies at home. I recommended that you put a note on the copies indicating where you put the originals. (Nothing drives successor trustees and families crazier than to find the copies but not the originals.) Did you put the originals in your safe deposit box? “
“Yes, but that was a long time ago. We took them out once, and I don’t think we ever put them back. Now we can’t find them anywhere.”
Don’t let this happen to you!
What if you do lose the original Trust Agreement? As long as trustors/grantors remain competent, they can execute a Restatement. As the name suggests, this document restates all the provisions of the original, missing document, without necessitating any re-titling of assets such as real property and financial accounts that may already be held by the trustee of the Trust. The Restatement may also include whatever modifications are necessary to bring your estate planning up to date. The preparation of a Restatement is not likely to be as involved as the drafting of the original Trust, but does entail some expense.
What if, after misplacing the original Trust, a trustor/grantor has become incompetent, and therefore no longer able to sign legal documents? This should be discussed with legal counsel, but basically, the best advice is, don’t let it happen to you.
Do keep your original estate planning documents in your safe deposit box or some such secure place. Do keep a note, at home with your copies, indicating where you have stored the originals.
Jerry Kessler practices law in Santa Clarita. He can be reached at 661-255-1001.