Dear Mr. Miller:
My Dad died recently. The only asset he owned was his house, worth about $1 million, free and clear. He placed the title in his Living Trust. I am the only child and beneficiary.
I was all ready to sell the house when escrow asked me for a copy of the Trust. Unfortunately, I can’t find the Trust and everything has bogged down at this point. The buyer has given me one week to get it straightened out or they are canceling the deal and moving on. What should I do?
Daughter Without a Title
Determining Who Is the Trustee and Beneficiary
Call for Help Now
Determining Who Was the Attorney or Notary–The Deed and Estate Planning Documents
Determining Who Was the Attorney or Notary–Financial Institution Accounts
Determining Who Is the Trustee and Beneficiary: I sympathize with your plight. Basically a million dollars that you cannot access. I am sure this was not your Dad’s intention. This problem has come up quite a few times recently and has even been discussed on a national attorney listserve to which I belong. So, for whatever reason, it is a popular topic as of the writing of this post. The Trust is probably valid; the problem is that we do not know who is to be the Trustee or the beneficiary.
Call for Help Now: I would suggest you give us a call immediately at 760-436-8832. We do offer a free consultation for new clients and the sooner you do this the better. You may not be able to save this transaction as one week is a bit short, but at least you will be ready for the next buyer. And that is the lesson for others: get an attorney when someone dies, now, not later. That way problems can be avoided or spotted at the outset and resolved before buyers are lost!
Determining Who Was the Attorney or Notary–The Deed and Estate Planning Documents: First, do you know who drafted the Trust. If it was an attorney, then that person probably kept a copy of the document. If you don’t know, then the fact that the house is titled in the Living Trust may give us a clue. For example, on documents I usually act as the Notary on the transaction. Assuming your Dad deeded the house from himself to the Trust (this is the way it occurs more often than not), that means my name is going to appear on the deed placing title in your Dad’s Trust. If I am not the Notary but recorded the deed, my name will appear as the Requestor of the Recording (generally the upper left hand corner of the deed in California). So obtain a copy of that deed either from the escrow or title insurance company handling the transaction. See who acted as notary and Requestor of the Recording and then check the State Bar’s website for a list of attorney’s. See if either of those persons is an attorney. If that does not provide the necessary information, do a google search on the names for contact information. Search the list of notaries on the Secretary of State’s website (the agency licensing Notaries in California). Sometimes the Notary, although not an attorney, may draft the document or see to its recording (a terrible idea but it occurs). Maybe that person kept a copy of the Trust. Note that it is unlikely that a non-attorney and even “trust mills” in which an attorney is involved kept copies. (And that is one of a multitude of reasons for our other readers to steer clear of these outfits.) Take a look at any other estate planning documents (power of attorney, health care directive, Will, etc.) for the same clues.
Determining Who Was the Attorney or Notary–Financial Institution Accounts: If you are still striking out, were there any bank accounts or securities accounts that were titled in the name of the Trust or even an insurance policy in which the Trust was named as the owner or beneficiary? At least sometimes, these institutions take a copy of the Trust. Also, I have been told that CPA’s sometimes have copies of the Trust although I am not aware of this occurring myself. So check with your Dad’s income tax preparer. Still striking out? You can retain an estate planning/estate attorney and have him post an inquiry on any list serve to which he belongs asking if any of the member attorneys prepared a Trust for your Dad.
Probate Court: Lastly, and as a last resort, you are going to have to go to the Probate Court. The good news is that you will probably end up with the assets. The bad news is that you will need to work your way through the court proceeding. Hopefully, someone saw the document or remembers its contents. Often that evidence will be received by the Court to establish the terms of the Trust. If you do not even have that, then the house, and other Trust assets, will need to pass by way of a full Probate proceeding to those people named in the Will or, if there is no Will, your Dad’s closest relatives (probably you).