Trustee’s Duty to Provide Terms of Trust

GENERALLY, a trustee has a legal duty to provide the terms of a trust to anyone mentioned in the trust as a beneficiary AND also to the heirs at law.

APPLIES TO IRREVOCABLE TRUSTS ONLY. These laws apply only to a trust which has become irrevocable (i.e. permanent). Many trusts begin as revocable trusts and do not become irrevocable until the persons who make the trust (Trustors) are deceased. A typical situation is where a husband and wife form a revocable trust. While they are both alive, the beneficiaries are not legally entitled to see a copy of the trust. However, when one or the other dies, part of the trust typically becomes permanent. At that point, the rights of the beneficiaries and heirs to have a copy of the trust comes into being.

WHEN MUST THE TRUST BE PROVIDED? A trust beneficiary is entitled to a copy of the trust at any time requested. A legal heir is entitled to a copy when there is a death of a settlor/Trustor (i.e. the trust maker).

WHY ARE LEGAL HEIRS ENTITLED TO A TRUST COPY? Since trusts are not recorded or registered with any government agency, the legal heirs NOT mentioned in the trust are to be given a trust copy so they can see what is happening with the trust estate and its assets. This gives them an opportunity to complain about the trust if they believe there is anything improper about the trust or the circumstances surrounding the trust creation or amendments. Typical cases are where the trust starts out as a 50/50 split between 2 children. Then one of the children influences the parents to change their trust and remove the other child from being a trust beneficiary. This might be when one child lives with or takes care of their elderly parents and exerts fraud or undue influence to get the trust changed to remove their sibling. Also, this can happen if changes are made when parents are mentally incompetent. In this situation, the child who has been removed is still an heir at law so if he is provided with a copy of the trust and its amendments he will know about the change and if he believes the changes were improper he can file a court petition/lawsuit to have the changes declared void and regain his 50% of the trust estate. If there was not a law requiring the heirs to get a copy of the trust the disinherited heirs would not have any way of finding out what happened.

REMEDIES FOR FAILURE TO FOLLOW THESE LAWS: A trust beneficiary may file a probate court petition (lawsuit) to compel the trustee to follow these laws and provide information. Failure by a Trustee to provide information and terms of a trust may be grounds to have the Trustee removed depending upon the circumstances.

LAWS ON THIS SUBJECT. The California Probate Code has various sections which are quoted below.

Cal Prob Code § 16060 (2016)

§ 16060. Trustee's general duty to report information to beneficiaries. The trustee has a duty to keep the beneficiaries of the trust reasonably informed of the trust and its administration.

Cal Prob Code § 16060.5 (2016)

§ 16060.5. "Terms of the trust"
As used in this article, "terms of the trust" means the written trust instrument of an irrevocable trust or those provisions of a written trust instrument in effect at the settlor's death that describe or affect that portion of a trust that has become irrevocable at the death of the settlor. In addition, "terms of the trust" includes, but is not limited to, signatures, amendments, disclaimers, and any directions or instructions to the trustee that affect the disposition of the trust. "Terms of the trust" does not include documents which were intended to affect disposition only while the trust was revocable. If a trust has been completely restated, "terms of the trust" does not include trust instruments or amendments which are superseded by the last restatement before the settlor's death, but it does include amendments executed after the restatement. "Terms of the trust" also includes any document irrevocably exercising a power of appointment over the trust or over any portion of the trust which has become irrevocable.

Cal Prob Code § 16060.7 (2016)

§ 16060.7. Duty to provide terms of trust to beneficiary; Exception. On the request of a beneficiary, the trustee shall provide the terms of the trust to the beneficiary unless the trustee is not required to provide the terms of the trust to the beneficiary in accordance with Section 16069.

Cal Prob Code § 16069 (2016)

§ 16069. Exceptions to duty to account, provide terms of the trust or requested information. The trustee is not required to account to the beneficiary, provide the terms of the trust to a beneficiary, or provide requested information to the beneficiary pursuant to Section 16061, in any of the following circumstances:

  1. In the case of a beneficiary of a revocable trust, as provided in Section 15800, for the period when the trust may be revoked.
  2. If the beneficiary and the trustee are the same person.