By Kaytlin M. Keen
Are you missing the original copy of a trust? Do not panic! This is not uncommon and fortunately, an experienced attorney can help you establish a lost trust.
Under Florida law, it is possible for a person to enforce a lost trust instrument, so long as certain conditions are met. While this is not an ideal position to be in, all hope is not lost. However, the process for handling a lost trust instrument is more complicated than merely stating that the instrument is lost, and asserting what the instrument stated.
Practical Tip: The rules for establishing a lost trust differ from those of establishing a lost will. If you are missing the original copy of a will, an experienced attorney may still be able to help you establish the lost will. However, the criteria that must be met differs from what is detailed in this blog post.
Conditions for Enforcing a Lost Instrument
First thing is first—Before you go rushing to the courts to try and validate a lost trust, make sure you have checked off the following three steps:
- Conduct a Final Search. First, make sure the trust instrument is truly lost. The law requires that all reasonable efforts to locate the instrument have been exhausted before seeking enforcement, so it is worth double-checking all locations where important documents may be kept. Recruiting a trusted family member or friend to help with the search is also recommended.
If a law firm drafted the trust instrument, give that firm a call! It is entirely possible that the drafting law firm retained the original copy of the trust for safekeeping. At a bare minimum, the drafting law firm should at least have a copy of the original trust instrument, which will be needed to prove the contents of the trust.
- Search for Any Other Trust Documents. During your search for the trust instrument, keep an eye out for any other documents that mention the trust. Trust instruments will contain language detailing how a trust can be amended or revoked. This language typically requires a written amendment or revocation, meaning it is possible a separate document could be found which amends or revokes the initial trust instrument.
The good news here is that, unlike with a will, if there is no written instrument revoking the trust, a copy of the trust establishes the content of the trust without a presumption of revocation.
- Confirm Entitlement to Enforce the Instrument. To be able to enforce a lost trust instrument, you must prove that you are entitled to enforce the instrument at the time it was lost. Alternatively, you may establish that you acquired ownership from someone who had the right to enforce the instrument when the loss occurred. The best way to do this is by establishing whether you are a beneficiary to the trust, or an heir to a deceased beneficiary to the trust. A copy of the trust instrument may not be valid on its own, but it certainly helps with this step!
Proving the Terms and Rights to Enforce
If a copy of the trust cannot be found, then the next step is to prove the terms of the instrument, and the right to enforce it. This is where the courts come in. Section 736.0201, Florida Statues, states that a judicial proceeding involving a trust is appropriate to determine the validity of all or part of a trust.
If the original instrument has been lost or destroyed, Florida law allows the introduction of other evidence to prove its terms, provided that the party seeking enforcement did not destroy or lose the instrument in bad faith. In the case of Insurance Co. of Pennsylvania v. Genova Express Lines, Inc., 605 So. 2d 941, the Third District Court of Appeal clarified that such evidence is admissible when the original document cannot be found. Evidence usually includes testimony from a witness to the execution of the original trust instrument and/or the testimony of the attorney who drafted the trust, who will then enter a copy of the lost trust into evidence.
What Happens if You Cannot Find a Copy of the Trust Instrument Either?
Without a copy of the trust instrument, it becomes even more difficult to establish a lost trust instrument. Ultimately, if an original trust and all copies of it cannot be found, then the proponent of the trust will have to rely on the court to determine the validity of a trust to attempt to establish the content of the lost trust. See Section 736.0201, Florida Statues. The evidence that would be used to establish the validity of the lost trust instrument would vary based on the specific facts of the matter.