Probate is Public and Living Trusts are Private
One common question our law office receives is, “Is a living trust a public or private record in California?” Most people assume they are public records similar to a will and that they must be recorded with the courts.
However, that statement is NOT True! Living Trusts are NOT required to be public records in California and are in fact designed to be private documents meant for the eyes of family members and beneficiaries only. Probate is a public process and can bring on scrutiny for high profile cases (think celebrity deaths), but one of the biggest benefits of drafting a living trust is to ensure that the matters of your estate can be kept private.
Once you create a living trust, it needs to be funded in order to work. Think of the living trust as a fireproof safe. In order for a safe to be effective, you must place items inside so they can be protected. After you have created a trust, you must change the title on all your assets and accounts to the name of your trust—which includes real estate, bank accounts, and other property.
In short, your property will be owned by the living trust and outside people can find that information about since titles are public records, but they cannot look anything further into your trust and how those assets are set to be distributed upon your passing.
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For more information about living trusts in California contact Elder Law Services at (800) 403-6078 for a FREE consultation with an expert estate planning attorney. We look forward to working with you.
Common Questions about Probate and Living Trusts
Is a Living Trust public in California?
No. Living trusts are not public records in California. Unlike a will that goes through probate court, a living trust is a private legal document.
Only the trust creator (the grantor), the trustee, and named beneficiaries typically have access to the trust while the grantor is alive. After the grantor passes away, California law requires the trustee to notify beneficiaries and heirs, but the trust document itself is still not filed with the court unless a legal dispute arises.
For many California families, the privacy of a living trust is one of the main reasons they choose trust-based estate planning instead of probate.
Who gets to see a trust after the trustee dies?
When the person who created the trust dies, the successor trustee must notify beneficiaries and heirs under California Probate Code §16061.7.
Those individuals have the legal right to request and review the trust document.
People who may receive or request a copy include:
- Named beneficiaries of the trust
- Heirs at law (people who would inherit if no trust existed)
- Successor trustees
- Attorneys involved in trust administration
The trustee must typically provide a copy within a reasonable period after receiving a formal request.
Where are last wills and trusts recorded in California?
In California, wills and trusts are handled differently.
Wills
- Become public once filed in probate court
- Filed with the Superior Court in the county where the person lived
- Probate records are generally public
Living Trusts
- Usually not recorded anywhere
- Remain private documents held by the trustee or attorney
- May only appear in court records if there is a trust dispute or litigation
This privacy is one of the primary reasons many Californians use a revocable living trust as part of their estate plan.
How do I get a copy of a living trust?
To obtain a copy of a living trust in California, start by contacting the trustee or successor trustee responsible for managing the trust.
Possible sources include:
- The trustee or successor trustee
- The estate planning attorney who drafted the trust
- The grantor’s personal records
- A safe deposit box or home safe
- The financial institution holding trust assets
If you are a beneficiary or heir, you may have the legal right to request a copy after the grantor’s death.
How can I find out if a trust exists?
There is no central registry for living trusts in California, so determining whether a trust exists usually requires checking personal records.
Common ways to confirm a trust include:
- Reviewing the person’s estate planning documents
- Checking with their estate planning attorney
- Asking the successor trustee or family members
- Reviewing property deeds or financial accounts that may be titled in the name of a trust
- Searching for references to the trust in financial or legal paperwork
If a trust exists, assets such as real estate or bank accounts may be titled in the format:
“John Smith, Trustee of the Smith Family Trust dated January 1, 2015.”
What should I do if the original trust document is lost?
If the original trust document cannot be located, there may still be ways to reconstruct or verify the trust.
Possible solutions include:
- Obtaining a copy from the estate planning attorney
- Checking with the successor trustee
- Looking for digital copies stored with financial records
- Reviewing property deeds or financial accounts titled in the trust name
In some cases, a copy of the trust may still be legally valid, especially if there is clear evidence the trust existed and was properly executed.
An experienced California trust attorney can help determine the best legal strategy if the original document cannot be found.
Does a living trust avoid probate in California?
Yes. Assets properly placed into a revocable living trust typically avoid probate in California.
Instead of going through court, the successor trustee distributes assets according to the instructions in the trust document. This process is often faster, more private, and less expensive than probate.