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Father’s living trust is missing

Mar 29, 2010 | | Comments Comments Off

Dear Liz: My 82-year-old father, who is in a nursing home in California after multiple strokes, had always told me that he set up a revocable living trust for himself and my mom. I’ve been going through his papers and can find only unsigned copies of his trust.

My dad now suffers from some dementia, and my mom knows nothing about where he might have put a copy of the trust. I do not think a lawyer was involved.

I am worried about what will happen when my dad dies. Are revocable living trusts recorded somewhere? If so, how do I find his? Can my mom set up a new trust? They don’t have a lot of assets — just a house and car — so am I worrying needlessly?

Answer: Your dad can’t sign the copies or have a new trust created if he’s not mentally competent — and with the strokes and the dementia, he’s probably not, although you’ll probably want to consult a lawyer. Without a durable power of attorney, no one else can have estate documents created for him, either.

You can check with the county assessor to see if their home was transferred into the trust and with his bank to see if accounts are in the name of the trust.

But living trusts aren’t recorded anywhere. If you can’t find a copy of it and if assets, such as the house, weren’t transferred into the name of the trust, you can’t use the unsigned copies to avoid probate, said Burton Mitchell, a Los Angeles estate planning attorney with Jeffer, Mangels, Butler & Marmaro.

“This is like the tree falling in the forest” with no one to hear it, Mitchell said. “If no one can find a living trust, I guess it doesn’t exist.”

You may want to expand your search. Check your dad’s papers for any bank he may have done business with, and find out whether he had a safe deposit box there. If he didn’t trust a bank with the document, it may be hidden somewhere in the house. Estate appraiser Julie Hall, author of “The Boomer Burden: Dealing With Your Parents’ Lifetime Accumulation of Stuff,” said heirs have found documents hidden in freezers, taped to attic rafters, tucked under mattresses and slipped behind the mats of framed pictures, among other places.

Review your dad’s checkbook around the period when the documents were created, if possible. If a check was made out to an attorney during that time, the signed document may have been filed with him or her.

It’s worth putting some effort into this search. A house in California can be a considerable asset. Unfortunately, probate in California is expensive and slow. That’s why many people with even modest assets opt for a living trust: to bypass probate and save their heirs money.

The house may be able to avoid probate if it’s titled in joint tenancy, Mitchell said. In that case, if your father dies first, your mom will inherit it and then could create a living trust of her own.

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Categories : Estate planning, Q&A