I created a trust over 15 years ago and since them I have only amended it once back in 2006. At this moment I need to find my original trust documents in order for me to proceed with selling one of my properties. For the life of me, I cannot find it! I've searched everywhere and it looks like since my last move I must've misplaced it.
Can I still go about selling my property to my buyer without any problems? What would I need to do to ensure both sides are free of any liability?
I'm selling my single family home to have more liquid funds available.
Also, I've attempted to track down and find the attorney I originally worked with and he is nowhere to be found. Collegues maintain that he's moved out of the country. What can I do??
I would check with the State Bar, in relation to the attorney. It is possible that another lawyer or firm has taken over his practice/files. Barring that, you should still be able to handle this transaction. Normally, you do not need to record the Trust, to prove that you have legal authority as trustee.
Assuming the property is titled in the trust in the first place, you should be able to execute a "Certificate of Trust Existence and Trustee Authority" that would be acceptable to the title company. This would reference the date of the trust, and the fact that you certify you are the trustee and that no changes have been made to the trust. You would also normally need to include the legal description of the property and the applicable portions of the trust related to the trustee's authority to sell the real estate. That last one would be problematic for you.
This is not a situation which you should allow to continue. Even if you are able to get this transaction done, you are going to want/need to have your documents, at some point. If you cannot locate the attorney or successor to the attorney, then you should consult with a new attorney and have the trust "restated." This is an amendment that basically replaces the original trust agreement. You do not want to set up a NEW trust, because presumably all of your assets are held in the current one. The lawyer could also help you through the current situation, if need be.
Good luck finding your documents! This is a good (and hopefully not expensive) lesson for you. If you are having trouble locating your own documents, the people who are to take over if you die or become incapacitated will have an even tougher time. You should make sure that these people know exactly where to find your documents, if something should happen to you.
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As Mr. Frederick has answered, your first and best option is to track down the attorney through the CA State Bar. The website is here: http://www.calbar.ca.gov/. Your second best option is to amend and restate your trust if you cannot clear title through a Certificate of Trust. If the property is not actually titled in your name, as trustee, but simply in your name -- you don't have an issue. Good luck.
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Estate Planning Attorney
I agreed with the other attorneys. Some questions - Who is telling you that you can not sell this property without having the original trust documents? Do you have a COPY of the original executed trust documents? Is the property you want to sell in the trust (check the current title.deed)? If so, does the name of the trust on the title/deed have your name as the trustee? As the maker of the trust, you have the authority, as trustee, to dispose of real property contained in the trust. If it has been 15 years since you have done any estate planning, you should consult with an attorney and consider doing an Amendment and Restatement of Trust. Basically, you create a completely new set of documents, but keep the original name of the trust you executed 15 years ago (less costly). I suggest you consult with an attorney. This is legal information, not legal advice.
If you do not have a copy of your title/deed, let me know. I can pull it for you.
Craig M. Scalise, Esq.
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Try to locate the attorney who drafted the trust and see if a copy of your trust is available. If you still cannot get the trusts it would be advisable to hire an attorney to review the existing deed, amend and restate the trust and get further legal guidance.
Estate Planning Attorney
Your simple solution would be to restate the trust.
This is very common when originals are lost.
The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.
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