Do I have to Provide a Copy of my Trust and Will to Beneficiaries While I'm Still Alive?
When are beneficiaries entitled to receive a copy of one’s trust or will?
Occasionally our clients ask whether they can or if they are required to provide a copy of their estate planning documents – particularly their Trust and Wills – to their beneficiaries. Generally, no, there is no requirement to turn over your Trust or Will during your lifetime. Both documents are intended to be private during your lifetime, with the Trust to remain such following your passing. In fact, we typically recommend not to share your Trust and Will with your beneficiaries during your lifetime, and only go as far as to inform them to look for such upon your passing.
The principal reason you do not want to share your Trust or Will with your beneficiaries is that these documents are generally amendable and revokable during your lifetime. Unless your documents specify something to the contrary, Trusts and Wills are, by default, freely amendable and revocable by the creator (here, you) in California. Sharing documents subject to change, if not a complete revocation, almost always leads to hurt feelings and family tension, if not outright family feuds. This is especially the case if you have an uneven distribution, gifts to non-family members such as a close friend, or if you are still directly supporting a child. While you may have perfectly reasonable and sound rationales for your chosen distribution plans, others may not see the same reasoning. Additionally, the act of simply picking one person over the other to be the manager of your estate after your passing alone could create tension.
For example, eldest son may feel slighted he was not selected to manage your estate due to his position as oldest, even though the child you picked lives closer and is more familiar with your estate as she has helped during your lifetime. Another example of where tension may arise is when you establish conditions that must be met before a party is to receive their distribution: clean drug tests, finishing their education or simply waiting until they reach a certain age.
Finally, you can always make changes to your documents that could avoid the problems outlined above meaning allowing them to arise was not necessary; or later changes could create all new problems. Thus, at most, we typically recommend you only inform beneficiaries that such documents exist if you want to make sure they search for such after your passing. You may also wish to inform the person you selected as manager of your estate where to look for said documents since they will need said documents to enforce their authority to act.
When a Will is Required to be Disclosed
Your Will does need to be provided to a probate court upon your passing to be logged. California Probate Code Section 8200 provides that the custodian of your Will has 30 days after having knowledge of your death to both (i) deliver the original Will to the court and (ii) deliver a copy of the Will to the manager your appointed, here an executor. If the custodian fails in these deliveries, they will be liable for all damages sustained as a result of their failure to do so. Typically, your chosen manager will also end up as the custodian and thus they need only deliver the original Will to the probate court.
Additionally, heirs and beneficiaries are entitled to a copy of said Will and should be provided such upon reasonable request to the executor of your estate. Thus, the contents of your Will do become known to both the probate court and your heirs and beneficiaries upon your passing.
When a Trust is Required to be Disclosed
Trusts, though they are useful during your lifetime when it comes to long-term care planning and asset management, is intended to remain a private document. The only parties who are required (or entitled) to a copy of your Trust are the Trustee(s) and the current beneficiary(ies). While this may sound contradictory to what we have said above, Trusts are a special case depending on how the are created. Firstly, however, we need to clarify what your role in your Trust is.
When you establish a Trust, you are the trustor, the maker of the Trust. Unless special circumstances are at play, you are also the manager of the Trust, the Trustee. Additionally, while you specify a distribution following your passing, those beneficiaries are not current beneficiaries until you pass away. Thus, the question remains, who is the current beneficiary? The answer is you. You are managing your Trust estate, created by you, for the benefit of yourself. Following your passing, a Successor Trustee steps in and manages the Trust estate for the benefit of the other beneficiaries you designated during your lifetime, thus they become current beneficiaries.
How these roles intersect with disclosure of a Trust is that a Trustee of a Trust has many duties they need to adhere to. The duties relevant to disclosure of a Trust are the duty to communicate and duty to account to beneficiaries. Under these duties, a trustee must provide notice to beneficiaries upon the happening of certain events pursuant to California Probate Code Section 16061.7.
You can read posts on our website for greater details about what triggers the notice requirements, but to summarize, a trustee must provide notice to heirs and beneficiaries of a trust when the trust, or a portion of it, becomes irrevocable, or when there has been a change of trustee of an irrevocable trust. A Trust becomes irrevocable when the make of the Trust passes way or becomes incompetent. The trustee has 60 days to serve that notice and it must conform to the requirements of the probate code.
Finally, while not required, it is best practice to include a copy of the trust with the notice since the heirs and beneficiaries are entitled to a copy regardless and to track any notices or documents sent in the mail. Thus, heirs and beneficiaries have a legal right to a copy of your Trust and Will only after they become irrevocable, typically meaning you have passed away and it is time to distribute their inheritances anyway. The only other parties who may require a copy of the Trust will be a financial institution (such as a bank to open a trust account) or a county recorder if there is real property to be distributed to your children (required for potential property tax exemptions).
While the probate code is relatively constant, everyone’s situation and circumstances are different meaning every case must be approached in a careful and thoughtful manner. Additionally, matters such as those discussed above are heavily dependent on your particular family dynamics. If your heirs get along and you are very confident that disclosure of your Trust and Wills terms will not cause a fight, then you are certainly free to provide copies of those documents to your children. In fact, we are occasionally requested to provide those copies right after our clients sign their documents to begin with.
