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Can a Lawyer Refuse to Give a Copy of Living Trust to Decedents Children?

Attorney Thomas B. Burton answers the following question: "Can a Lawyer Refuse to Give a Copy of Living Trust to Decedent's Children?"

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Hello, I'm Attorney Thomas Burton.

I'm an estate planning and asset protection attorney here in Wisconsin and today's question comes from Green Bay, Wisconsin and the viewer asks the following -

"Can a lawyer refuse to give a copy of living trust to decedent's children? A person had a lawyer create a living trust that named her two adult children as trustees after her death. Their mother died recently and the children were unable to locate the living trust document among her possessions. They met with the lawyer who created their mom's trust but he refused to give them a copy. How can that be? It doesn't sound right!"

Okay, so excellent question here. In general, a trust is a private document made by the person who creates the trust that, we call them the 'Trustor' or the 'Grantor', and it remains private during their life.

Now, the person who creates the trust often but not always will share it with the person named to act as trustee after they're gone, after their death. But they are not required to do so but what you need to understand that as attorneys we have a duty of confidentiality to our client. So if I drafted a trust, let's say for the woman, the mother in this situation, what she tells me is all private and I only give a copy of the trust to her. Now if she chooses she could give a copy to her children or to the trustee named in the trust at that time but she doesn't have to because with the living trust, you can always amend or change the trust later and if you do so, you may not want that copy, the old copy floating out around there.

So in general, lawyers, we owe a duty of confidentiality to our client.

Now I'm not sure if that's why the lawyer refused to give it to you but that's one of my guesses as to why. Perhaps, the mother did not authorize it.

Now usually if a trust document is lost and the lawyer has a copy and that trustee whose name to act after the deceased person dies if that trustee contacts the lawyer, usually the lawyer can get them a copy from the file because they are the currently named trustee. However, it's possible, my other thought in this situation is that maybe your mother drafted the first trust and named you as a trustee but later she changed it and the lawyer knows that, so you are no longer the trustee, in that case it could be someone else like a corporate trustee, a bank or another third party who has a right to the copy of the trust in order to administer it after your mother's gone and then in that situation, I could see maybe where a client would leave specific instructions to the lawyer on who to release it to, after they're gone. So the answer to this is going to depend on the specific terms of the trust itself. When it was executed and what the trust says about who has the right to see it.

So I would consult with a local attorney and review the trust with them, at least the copy you have. Let's see here, you say, "unable to locate it", but discuss the facts of the situation because if you're not a beneficiary or a trustee of the trust, it's unlikely that you have a right to see the trust document and there are Wisconsin statutes that lay out the rights of trustees and beneficiaries and that would guide this discussion unless they were altered in the terms of the trust document itself.

So this is a very interesting question and one I see come up a lot about who has the right to see a trust document and the key to remember is it's a private document during the person who created it, during their life and after their death, only the trustee they named to take over after them generally has the right to have the copy of the trust document. Now if there's beneficiaries name, they sometimes have rights to see the trust document as well. So again I would consult with a local attorney and try to give them if you don't have a copy, your best recollection of what, when you thought your mother executed the trust what it said and hopefully you can get a path forward from there and just as a reminder, the reason your mother's lawyer may not be able to release it to you maybe, out of a duty of confidentiality to their client which was your mother, so I recommend you consult with a different lawyer to figure out what your rights are as the trustee or beneficiary.

So great question and thank you for asking.

© 2020 Burton Law LLC. All Rights Reserved. Transcript and captions provided for ease of access for the hearing impaired. For questions about this topic, or to suggest a topic for a future blog post, please contact the office.


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