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  • American Ancestors - Living Trusts Complicate Genealogical Research

    Jane Hufft

    Most genealogists look to the future as intently as to the past: the release of the next census, a trip .to Salt Lake City, and the news from research efforts such as the Great Migration Study Project are eagerly awaited. Yet a few clouds loom on the “eventually-those-records-will-be-available” horizon; one of these is the increasingly common use of “living trusts” for estate planning, a trend which is closing an important window for genealogical research.

    Probates Will Be Less Common

    Probates are public documents and frequently not only contain information about the decedent’s financial status, but also list an array of family members, their relationships, and residences - data of inestimable value to genealogists.

    Living trusts, however, are generally administered privately and without court intervention. Since there is no formal public record of their existence, the information they contain, such as extent and value of property and names and relationships of heirs and kin, will not be available.

    In the last decade the use of living trusts for estate planning has become very common among persons with substantial estates, because such trusts avoid the expense, delays and publicity of court probate proceedings. A living trust is, in a way, a substitute for a will that avoids probate and saves a family legal fees and costs. Titles to primary assets are placed in the trust, so no probate court orders are required to transfer a decedent’s property. Thus the researcher loses the opportunity to establish relationships and locate names from such documents.
    Living Trusts Are Not in Public Records

    Trusts are formed in the names of persons creating them: a married couple may form the John and Mary Jones Trust, or a single person may form the Jane Doe Trust. Future researchers, when searching under a decedent’s name, will have to look for clues that a living trust was created. The primary indicator will be finding title to property placed in the trust. By acquiring copies of the deed to the decedent’s real property, the genealogist will usually be able to determine if the decedent had a living trust, since title to the real property will stand in the name of that trust even if acquired after the trust was created. Trust names will appear in the grantor-grantee indexes under the surname of the decedent.

    If the trust contained no real property, but assets such as bank accounts and stocks, establishing the existence of the trust will be more difficult.
    Options for Research

    Despite these new barriers, three options remain: wills, real property records, and the civil index at the clerk’s office. Whenever you suspect a living trust, try the following:

    1.  Look for a will. It may identify issue of the decedent while specifying that any property outside the trust goes into the trust. Many states require that a will be filed with the county clerk in a decedent’s county of residence within thirty days after death, even when a trust has been created. Unfortunately, this procedure is not always followed, and legal efforts to require filing of the will when there is no contemplated probate are rare. If a protest over failure to record a will is initiated, it would be found in most counties in the civil index, under the decedent’s name. If there is a trust it will probably be mentioned in the will.

    2.  Search the real property records under the name of the decedent. If the decedent owned real property and had established a trust, title to the real property will have been deeded to the trust When the creator of the trust (or a spouse) dies, and property passes out of the trust (usually to an heir), a deed will record the transaction. What will be missing will be an indication of the relationship to the decedent of the person receiving the property. Married names of daughters and other name changes will be stumbling blocks, unless such information can be verified from other sources.

    3.  Search the civil index under the name of the decedent. While trusts are not generally filed with the probate court, it retains jurisdiction to resolve disputes between beneficiaries.

    In some states too, one other source may be in the clerk’s office. Effective January 1992, California has adopted a new procedure in which the trustee of the decedent’s living trust may, as an option, publish a “Notice to Creditors” in a local newspaper. This notice, very similar to the notice used in probate proceedings, will contain the name and address of a person whom creditors may contact regarding payment of obligations owed by the decedent. A copy of this notice, along with the newspaper’s proof of publication, will be filed with the County Clerk, and will be indexed under the decedent’s name in a file to which the public will have access. More often than not, that person will be a relative of the decedent, and a possible source of more information.
    Leaving Records for Descendants

    A family historian or genealogist with a living trust should consider supplying relatives with the type of data generally available through a will. It might be wise to consider preparing an abstract of the trust, with a copy from which disposing language has been removed (i.e., property, relationships and heirs are mentioned, but precise details about distribution are omitted).

    While living trusts are likely to complicate future genealogical research, some public records will still confirm their existence. With such knowledge, the genealogist can avoid wasting time in a probate search, and instead turn his or her efforts to alternate sources.

    Jane Hufft, a free-lance writer and the wife of an attorney, has “chased western-bound ancestors” for over a decade. Interested readers may write her at 367 Castello Rd., Lafayette, CA 94549.

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