Trust
Copies & Originals : Obtaining a Copy of a Trust
Note: Anyone in search of the original trust or trust copies
should be sure to read the section entitled “Locating Documents”
immediately following the foreword.
Foreword:
Because confidentiality rules strictly limit our ability to provide
information or documentation regarding a client’s file, in any
request for reproducing trust documentation, it is important to
understand that we cannot take instructions from, give client information
out, or supply copies of any documents to anyone other than the
client – or-- in certain limited cases to the successor trustee
of a deceased client (or where incapacity of a client has been
fully documented by court order or signed declarations from two
licensed physicians in advance of any request).
These are rules that we must strictly adhere to even if the trust
documents have been stolen or hidden by another family member,
beneficiary, or some other person. (We are sorry but we cannot
involve ourselves in a dispute among family members.)
To clarify, the client is the person who established and signed
the trust. No one else is considered the client (no matter how
closely related you may be to the client).
The successor trustee on the other hand is the first in line
named (in the trust) to take over the duties of trustee after the
client is no longer able to serve. It is only at this point, that
is, after the client’s death or incapacity has been established,
that we can begin to discuss any of the trust matters with the
successor trustee.
In dealing with the issue of incapacity please remember that
this is a strict legal definition. The fact that someone is declining
in health and/or mental capability does not establish incapacity
for legal purposes. To legally establish a client’s incapacity
there are only two available options for meeting the documentation
requirements of the trust incapacity clause. One of the options
is a court order confirming incapacity. However, court confirmation
is extremely involved and thus rarely used. That is why most successor
trustees utilize the second available option contained in the incapacity
clause. This second option requires signed notes from two licensed
physicians stating the client’s incapacity. Please be aware that
we cannot deal with the successor trustee until these requirements
are met. While we sympathize with other family members please remember
we are only able to deal with the named successor trustee upon
death or incapacity.
If you are not the client you must obtain any copies or information
directly from the client or the successor trustee. More specifically,
if you are a trust beneficiary, child, or other interested party
we are sorry but we will not provide information, data, or a copy
of any trust documents to you no matter how closely related you
are to the client and whether or not you are named in the trust.
You must obtain any copies or information directly from the client
or the successor trustee of a deceased client. (Please read the
section below on confidentiality.)
As a note to our clients and others, please understand our business
goal is to offer a Living Trust for a reasonable price. This is
impossible to do if we must also be a repository, secretarial or
copy service. Not only does fielding the request, accessing and
reviewing the file, preparing and then forwarding the copy packet
take up significant office time, it brings up numerous other issues
including confidentiality and the fact that we cannot take instructions
from or give out information to anyone other than the client.
These are just some of the reasons that we impose significant
charges (a minimum of $100 to $300 in advance) and strict requirements
if we are asked to perform such a service (see below). Truthfully,
instead of collecting any fee we’d much rather anyone find the
trust original &/or copy – both of which leave our office with
and in the possession of every client. The information provided
in the next section helps many to locate these documents.
Inquirers should also be aware that confidentiality issues generally
prevent us from disclosing even who the successor trustee is. That
is why it is so vital (in the event or death or incapacity) to
first locate the trust documents and establish who the named successor
trustee is (so we can possibly help with matters).
Locating Trust Documents
Clients possess all signed originals and a complete copy
To forestall any potential need for our office to furnish copies
to anyone please be aware that all clients leave our office in
possession of both (1) All signed originals and (2) A complete
copy of all signed originals. This applies to all documents including
any trusts, other related documents and/or any amendments. (Our
office never keeps originals!)
To reiterate, when any client completes a trust in our office
they leave with a clear plastic envelope. This clear envelope contains
all signed trust originals and the other related signed original
documents. The client also leaves with a 3 ring binder, which among
other items contains a page for page copy of the contents of the
plastic envelope. This has been a routine practice that we have
followed with every client, without exception. We are also quite
specific to instruct clients to separate the originals (plastic
envelope contents) from copies (white binder contents) and to store
these in two different places for safekeeping.
Rather than have to charge a client or successor trustee for
this, we strongly encourage you to look for the original and/or
copies, which left our office in the client’s possession. We have
found that upon thorough search, most are usually able to locate
these documents.
Charges and Procedures For Trust Copies
Note: We will not mail or supply copies to anyone other than
client or the named successor trustee of a deceased client. Anyone
else who wants a copy of trust documents must obtain them directly
from the client or successor trustee of a deceased client. Please
read all sections below on confidentiality.
For copies to be generated the following procedures must be strictly
adhered to:
Our office must first receive a request, in writing, signed by
our client and accompanied by a check in the amount of $100.00,
for a five business day turnaround (although we often complete
the request faster.) If a shorter time line is demanded, then please
include check in the amount of $300.00. Address correspondence
to:
Affordable Living Trusts
14320-9 Saratoga-Sunnyvale Rd.
Saratoga, CA 95070
Checks shall be made payable to Landis Mahaffey.
Please be aware that we will not mail the copy or supply the
copy to anyone other than the client who can then forward a copy
to the interested party. If a client is deceased, and we have agreed
to furnish a copy to the successor trustee likewise we will only
supply the copy to the successor trustee and it is then the successor
trustee’s responsibility to forward such needed documentation to
the institution or interested party.
Thank you,
We Must Strictly Adhere To The Rules on Confidentiality
Setting the scene for this discussion on confidentiality is the
fact that we often receive calls from children, neighbors, financial
planners, mortgage brokers, and other associates of our clients
inquiring about a client’s trust or other matters related to the
trust.
These inquiries range from requesting information about the trust
file, provisions of the trust, and obtaining a full copy of the
trust. Sometimes these requests are made for quick answers or expediency.
Other times it is children who are trying to help their elderly,
failing or incapacitated parents. It can also be other associates
trying to assist in matters or obtain needed information on the
client’s behalf.
As is often the case , these requests are made under very, very
difficult, trying, or even emergency circumstances wherein close
family members are searching for what they perceive as needed paperwork
or documents they can’t easily locate (Power of Attorney, Health
Care Directives, Trusts, Amendments, Asset Information, etc.).
We do understand that in the majority of cases these requests
are made with only the best of intentions. Typically, helpful family
members are simply trying to come up to speed on someone’s affairs
with little or no information. In striving for a solution or answer
under stressful circumstances we realize it’s easy to forget the
rules of confidentiality we must follow as a law office.
Yet regardless of the intentions, situation, or circumstances,
as a law office we are still strictly bound by these rules of confidentiality.
While there are those who immediately grasp that we must strictly
adhere to these rules there are yet others who often remain persistent.
Though we have the greatest of sympathy for those who are caught
in these difficult situations please let it sink in that confidentiality
is not an option that we can waive at our discretion – period.
So for those who think we can bend this rule we must reiterate
that we are strictly prohibited from discussing any matters, proceedings,
documentation or revealing any information regarding a client’s
meeting or trust documentation no matter who you are or what your
relationship is with the client. Even if the trust documents have
been stolen or hidden by another family member, beneficiary, or
some other person we cannot break confidentiality. (We will not
involve ourselves in a dispute among family members.) We therefore
respectfully ask that no one persist in asking us to break a rule
that we can’t and won’t.
To add to your understanding some short passages out of the rules
of professional conduct regarding this include:
….it is a duty of a member: "To maintain inviolate the confidence,
and at every peril to himself or herself to preserve the secrets,
of his or her client." A member's duty to preserve the confidentiality
of client information involves public policies of paramount importance….
The principle of client-lawyer confidentiality applies to information
relating to the representation, whatever its source, and encompasses
matters communicated… by the client, and therefore protected by
the attorney-client privilege, matters protected by the work product
doctrine, and matters protected under ethical standards of confidentiality,
all as established in law, rule and policy.
Again, while you may have our sympathy, confidentiality is not
an option that we can waive at our discretion no matter what the
circumstance.
So please, do not ask us to reveal any information or supply
you with copies of the trust or any other documentation or information
unless you are the actual client who completed and signed the trust. |
