Lost Will

[Sue Smith]

What is the name of your state (only U.S. law)? California
This concerns a Revocable Trust.
There is an A and B estate. A is for my aunt who is still living
but incapacitated and B is for my Uncle who is dead. We have
A's will concerning my aunts wishes, but can't find my uncle's original will. I believe the estate planners have a copy. What
are the steps we need to take in order to get the copy
approved? My aunt resides in California.

 

[justalayman]

Is the uncle recently deceased and that is why you need the will? If so, open probate and ask the court to compel the presentation of the will to the court. That is, after all, the point of having a will.

If he isn't recently deceased; has anybody ever opened probate? If not, then somebody should. If they have, check the probate court where he resided to get a copy of the probate file. The will should be in there.

 

[anteater]

It is confusing when you say...

This concerns a Revocable Trust.

... and then to go on asking about a last will and testament.

In any event, the CA code dealing with proof of a will can be found at:

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=08001-09000&file=8220-8226


In particular regarding a lost or destroyed will:

8223. The petition for probate of a lost or destroyed will shall
include a written statement of the testamentary words or their
substance. If the will is proved, the provisions of the will shall be
set forth in the order admitting the will to probate.

 

[Sue Smith]

Lost will

I couldn't find the name on the probate court site. The A and B trust was set up I believe to avoid probate. The funds in the A trust are distributed according to my aunts will, but the B funds were to going to whoever my uncle had provided for in his will.

 

[justalayman]

I couldn't find the name on the probate court site. The A and B trust was set up I believe to avoid probate. The funds in the A trust are distributed according to my aunts will, but the B funds were to going to whoever my uncle had provided for in his will.

well, the will can direct how the A trust is set up but once established and funded, (and at the point it is irrevocable) the trust controls and the will is meaningless.

If there is a will, probate is involved. The will cannot control the estates until it is presented to probate. If the trusts were funded prior to death and there was no estate to direct, the will would then be meaningless with no need to open probate (for that alone anyway). If the will is utilized to direct the estate and fund the trust, it must be presented to a probate action.

Once the B trust is established and becomes irrevocable due to his death, his will has no power to control the trust. The trust documents control.

this isn't meaning to say that the final beneficiary cannot be established by the will but once established and the trustor dies, the trust cannot be changed. Again, it is no longer the will directing but the trust itself.

You also need to understand that in an AB trust, the trust established by the first decedent can be utilized for the benefit of the remaining trustor. Given her condition, the entire trust could be exhausted of funds before her death leaving nothing to be distributed to the final beneficiaries.


So, after all of my ramblings:

what is the situation that give you reason to be dealing with this issue?

 

[Sue Smith]

reply

Thanks for your advice. I believe the people who set up the trust have a copy of the will of the deceased husband. In it he leaves money to many of his relatives and others. As I understand it that money will be disbursed when the wife dies. I want things to go smoothly after the wife dies and all heirs get their due.

 

[justalayman]

Thanks for your advice. I believe the people who set up the trust have a copy of the will of the deceased husband. In it he leaves money to many of his relatives and others. As I understand it that money will be disbursed when the wife dies..

The will controls only his estate. The trust is not part of his estate. If the directives in the will have not been instituted into the rules of the trust, what the will directs isn't going to happen. It is what is in the trust that makes a difference now.

In fact, if there is a will and there are any assets that were not put into the estate, the will still needs to be presented for probate. Even without a will, if there are assets that were not put into the trust, if they meet the requirements to trigger a probate action, there needs to be a probate action initiated.