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Is a copy of a notarized living trust as good as the original (legally)?

Campbell, CA |

We have a living trust and we sometimes make changes to it. For example adding new bank accounts, or updating it after we sell and buy a house. Thus we amend the trust. We give papers copies to the trustees but it's rather cumbersome to mail them. We store our copy in our safe box. We dont want the trustee to know our safe combo. If something happens to us can the trustees use the copy to execute the trust?

Thanks all for replying. What prompted my question about the legality of the copy is the fact that I couldn't find a safe, accessible and practical location to store the original copy of trust. By safe, accessible and practical I mean a place that the successors can easily access once (and only once) we become incapable of managing our trust. If you know a good way to store it (besides the lawyer's office), I would definetily like to know.

Attorney Answers 6

Posted

If anything happens to you, your successor trustees should execute a new document called an Acceptance of Successor Trustee. They will be able to provide a copy of the acceptance to whoever needs it. Ultimately, the successor trustees should have the original and amendments but there is no reason to provide the original pages at this time.

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Posted

Many trusts state that copies are equivalent to originals but I would suggest having one set of originals of all trusts and amendments. I take your question to mean that you are a "do it yourself" person. I know you've probably heard this before but please be careful and tread lightly. I also should point out that most people may place an account in the trust with trust titling but they don't change the actual trust (disposition of assets) when they open a new bank account or am I misunderstanding? I also generally advise clients its a bad idea to use safe deposit boxes due to the fact that executors/successor trustees often times have a hard time getting into safe deposit boxes - its a good idea if you trust these people to make sure they have access to the original documents so that the transition is smooth when it happens.

This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website: http://www.stevenzelinger.com/

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11 comments

Rosemary Jane Meagher-Leonard

Rosemary Jane Meagher-Leonard

Posted

I agree that using a safe deposit box to store the original trust is a bad idea. I thought they were referring to an in-home safe because it had a combination. Maybe I'm misunderstanding?

Asker

Posted

Rosemary is correct

Asker

Posted

Steven, thanks for your kind reply. I didn't quite understand your point regarding the bank account. I created the living trust docs from LegalZoom and when I open a new bank account, it put the name of the trust as the owner and amend the trust by adding the new account number. Is that sufficient?

Rosemary Jane Meagher-Leonard

Rosemary Jane Meagher-Leonard

Posted

Usually, title is taken as (for example) " You, trustee for the You Family Trust". If you titled your account in the name of the trust, that is probably sufficient. But, Steven's point is well taken. You need to be extra careful when drafting your own trust. Errors in the trust drafting or titling can result in an estate or part of an estate being subject to Probate.

James P. Frederick

James P. Frederick

Posted

Absolutely agree. Internet documents and do-it-yourself planning is a recipe for thousands in legal expenses, down the road.

Asker

Posted

Hi James, could you please elaborate as what complication might come down the road. Our case is pretty simple and generic. Husband and wife owning together a house, few bank and brokerage accounts, life insurance that we want to pass on to our kids. I think a standard Trust template should do the work.

James P. Frederick

James P. Frederick

Posted

Part of the problem with estate planning is that problems seldom occur during your lifetime. They happen when you are gone. At that time, the people who step into your shoes need to try to decipher your intentions from the documents you left behind. Worst case scenario, the documents are invalid in your state. Best case scenario, everything works out fine. MOST of the cases I see fall somewhere in the middle. If the amendments are not done properly, they may be invalid. If that is the case, there can be arguments about what your intent was, (or what it would have been, if you knew the amendment would not be valid.) Everyone assumes that their case is "standard" and cut and dried. We see the horror cases, but we see them with enough frequency that it causes us to counsel against the use of standard templates. Some other problems with the use of these forms are, 1) there is generally no advice to determine if you are using the right form or using it correctly, and 2) there is no one to contact if a problem does arise. If you use a lawyer to prepare the estate plan, there is someone who can testify as to your intent, and there is someone who can handle any problems if they do arise. People who do the kind of work that Ms. McMahon, Ms. Meagher-Leonard, Mr. Zelinger and myself do, do not do this thinking, "How much extra money can we extract from these clients who do not realize they can achieve the same thing with a cheap template?" We study constantly to keep on top of the laws and to use the latest refinements in the plans that we use, to provide the client with the best planning tools for their needs. We also counsel clients on the options that are available to achieve their objectives and to help them determine what they need. What you give up with your forms is the advice and service of a professional counselor at law . You can probably have a teenager who is good with his hands fix the brakes on your car for a fraction of the cost of a mechanic. But the teenager is not going to know how the brakes on that car wear, what the best kind to use is, whether you need to adjust the rotors, etc. You only find out if you got a good deal, when you find out if your car stops or not. And you may go through several sets of brake pads and rotors, when, if you had had a mechanic look at things, he could have saved you money in the long run. In the case of estate planning, your kids find out if you got a good deal, when they see if the documents work or when they need to pay someone to fix the problem. I have heard enough horror stories that I am convinced that it is not worth the potential savings.

Rosemary Jane Meagher-Leonard

Rosemary Jane Meagher-Leonard

Posted

Well said!

James P. Frederick

James P. Frederick

Posted

Sorry, I inadvertently left Mr. Kitta out. One thing I wanted to clarify. It is unclear from your summary, but it *sounds* like you are not actually amending your trust, but simply changing the list of assets that is covered (owned by) the trust. You normally would not need to amend the trust to deal with new assets, unless you specifically want those assets to go to a certain person. A properly established trust should deal with any assets it owns, without needing to be amended.

Asker

Posted

Hi James, thanks so much for the comprehensive advices. I actually use a separate form to amend the trust (not just adding to the page listing the assets). I've been instructed that once the trust is notarized, the proper way to change it is thru amendements. In my case assets are always distributed to the same folks (kids and siblings). If adding assets can be done w/o amending the trust, do we need to notarize again after adding/removing assets? That would make life quite a bit easier.

James P. Frederick

James P. Frederick

Posted

Please keep in mind that I am a Michigan lawyer and that you would be best to direct these kinds of questions to someone who specializes in estate planning in California, such as Attorney Meagher-Leonard. She is top notch. In Michigan, the kind of thing you are talking about would not be considered an amendment at all. We use a LIST that we attach to the trust document to help the successor trustee to know generally what the assets are. We recommend that the trust grantors update that list regularly, and usually suggest about 6 month intervals. That list does not need to be notarized. If your forms are set up differently, however, it is possible that there is some benefit in notarizing that form. Without seeing exactly what you have, it is hard to say. My guess is that you are not really signing amendments and they do not need to be notarized.

Posted

A copy of your trust does not have the same legal force and effect and your original documents. Your successor trustee should have access to your original trust once you are unable to handle the affairs of the trust or are no longer living. Although it is understandable that you would not want your successor trustee to have present access to your safe, there may come a time, after your death for example, when the successor trustee will need to have access to the trust documents as soon as possible. It is really not necessary for the successor trustee to have copies of your trust until that successor assumes his/her trustee duties. You might simply want to advise your successor trustee of the location of your trust. If you would prefer that your successor trustee have a copy, you could scan the documents, store it on a CD and provide his/her with a copy that way.

If a successor trustee cannot locate the original trust when the original trustees are either incapacitated or deceased, that trustee may be required to file a court action to establish that the copy is the true trust and that it can be used in place of the missing original trust.

Disclaimer: The above answer does not create an attorney/client relationship. My responses are intended to provide general information about the question posted. I am licensed to practice in the state of California. The information provided on this site should not be used as a substitute for conferring with or hiring a competent legal advice from a licensed attorney that practices in the subject area in your state.

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Asker

Posted

Thanks much for your reply. For sure it's hassle for me to send amended copies to my successors, and even more of pain for them to update their files. I am doing it because in case of sudden death and they won't be able to access the original copy. But thinking back, I am now wondering if a copy if legal enforceable to make this process worthwhile.

James P. Frederick

James P. Frederick

Posted

It SOUNDS like this information...these "amendments" is stuff the trustees really should be aware of. Otherwise, some of your assets might fall through the cracks. That is another reason why successors either should HAVE copies of the latest information, or at least know where it is at and how to get access to it.

Asker

Posted

That is what we do, we give copies of the amendments. My question is not how updated the info they are given but whether the copy they have is legally usable if they cant retrieve the original notarized copy.

Rosemary Jane Meagher-Leonard

Rosemary Jane Meagher-Leonard

Posted

Copies of the trust do not have the same legal effect as the original. In order for an original. In order for a copy to be used in place of the original, such as when an original is lost, a court order would be required.

James P. Frederick

James P. Frederick

Posted

This is not necessarily the case in Michigan. What it *SOUNDS* like to me, is that these "amendments" are not actually amendments at all. You are merely updating the asset list for the trust. It is hard to tell, based on the summary, though.

Rosemary Jane Meagher-Leonard

Rosemary Jane Meagher-Leonard

Posted

It does sound as though it's the updated asset list (which I usually call "Schedule A".

James P. Frederick

James P. Frederick

Posted

We call it the same thing, here! ;-)

Posted

No, a copy is not as good as the original. If the only thing available is a copy, someone would have to go through the court process and have the copy accepted as the best available evidence. It would be troublesome and expensive. This really wouldn’t be the best way to go.

hope this is helpful.

John N. Kitta
Fremont

This participating Attorney does not warrant any information provided, nor are we creating an Attorney-Client relationship by providing said information to you on this site. Nothing contained herein is intended to constitute, offer, induce, promise, or contract of any kind. The content provided is presented as a courtesy to be used only for informational purposes and is not represented to be error free. The Law Offices of John N. Kitta makes no representations or warranties of any kind with respect to its answer to inquiries, and such representations and warranties are being expressly disclaimed. Given limited facts, we are attempting to share relevant information concerning this area of the law as a public service.

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Posted

It is important for your successor trustee to know where the original estate planning documents are located. However, I understand your concern about giving your safe combination to your trustee. My suggestion is to place the documents in a locking fireproof filing cabinet. You can place your estate planning documents in this filing cabinet, and inform your trustee of the location.

Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response may change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.

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Asker

Posted

Thanks much for the suggestion. I was actually dealing w/ this problem http://www.avvo.com/legal-answers/what-is-a-safe--accessible--and-practical-place-to-886608.html which prompted me to the idea of giving out copies

Posted

Although I recognize the hesitancy to give the safe combo/key out. It speaks a little to your confidence in your successor Trustee. The core term is Trust. If you don't trust your successor trustee with access to the safe, then are you sure you trust your trustee to do what's right for you when the time comes.

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Asker

Posted

that's a good point. In my case it's more a privacy than a trust concern. That being said, I believe not many of us would give to our siblings their ATM PIN, but a vast majority would ask their sibling to be successor.

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