We get a lot of questions about what to do if a Will or Living Trust is lost. Unfortunately, this question generally arises after a loved one has died and the heirs have begun the process of settling the estate.
If you think you’ve lost your Will
- You can only have one Will, and the one with the latest date will supersede all others.
- If an attorney prepared the Will, contact that attorney to see if he/she has the original.
- Contact your Executor(s) to see if you gave it to him/her.
In the eyes of the law, if a Will is lost, it is presumed to be revoked
If someone finds a copy after you die and your heirs are willing to sign an affidavit that you did not intend to revoke your Will, the court will accept the copy. If neither the original nor a copy can be located, your estate will go to your legal heirs, regardless of what was in your Will.
What happens if you have lost your Trust?
Families also contact us about what they can do if a Living Trust is lost or they can’t find it. If you lose your Trust and die, not only will your Successor Trustees be missing valuable information about how you wanted your estate distributed, but they may be faced with moving assets that are titled in the name of the Trust into your Probate estate.
If a Trust is lost, and the decedent has assets titled in the name of the Trust, the court will require that the heirs/Successor Trustees spend a significant amount of time and money searching for the Trust and documenting the search process. This process involves Probate court and all of the expenses and fees associated with Probate—exactly what you hoped to avoid by creating a Living Trust in the first place!
Once any Trust assets are moved into the Probate estate, the full Probate case begins to distribute the assets. All of this translates to more time and more money. This scenario is extremely labor-intensive and expensive. We encourage our clients to keep their Trusts in a secure location and to share that location with at least one other family member.
If you lose your Trust or Will while you are still alive
If you’ve lost these legal documents while you’re still alive, California Document Preparers can assist in creating a new Last Will and Testament and/or Living Trust. You can restate your entire Trust, creating an updated Trust with the same name and origination date as your initial Trust, which will replace your old Trust.
Where should I keep my Trust?
We always caution our clients to keep the original Trusts in a secure place in their homes or offices. As a backup, you can give a copy to your successor Trustee and/or another trusted friend or family member.
Is a safe deposit box the answer?
A safe deposit box may not be the best solution, as it could require a court order to open the box if it’s in your name without a joint owner. This means your Trustee wouldn’t have immediate access if you became incapacitated or died.
- Don’t want to name a joint owner? Title the safe deposit box in the name of your Trust. In this way, your successor Trustee could gain immediate access to your safe deposit box if needed.
- Keep your Trust in a fire/waterproof safe in your home or office. Share the combination with someone you trust.
- If these other options are not realistic, keep your documents on a high shelf—away from floods, children and animals.
Most importantly, make sure your family knows the location of your Trust
Make sure your family knows you have prepared your Living Trust. In addition to the bound copy of your Living Trust, we can provide an electronic version, and many families share this with their heirs. Remember that many years may elapse between the time the Trust is prepared and the time it is needed to settle an estate, and circumstances can change. Successor Trustees themselves may die or become incapacitated. It may be advisable to share the Trust with several trusted family members. Most of all, don’t hide it —if people can’t find it now, there’s little chance they can find it when they need it.
Creating a Living Trust is an important part of end-of-life planning
If you’ve lost your Will and/or Trust, or you would like to create one, contact California Document Preparers at one of our three Bay Area offices today to schedule an appointment. We’re helpful, compassionate and affordable.
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