11/13/2025
Coffee with Counsel.
A discussion between myself, a “Title Guy” and Guy Kirkpatrick, an “Estate Planning and Probate Attorney Guy.” It wasn’t quite as boring as it may sound here.
I was having coffee with my Estate Planning and Probate Attorney friend and we were chatting about title issues and probate and what not…and there’s a lot of whatnot. It was a really good conversation and it occurred to me that this need to be shared with my clients, friends and family. And thus, the creation of Coffee with Counsel, hopefully, a monthly little report that comes from our conversations.
This conversation was about: What happens if the successor trustee cannot find the original trust that they are supposed to be successor trustee of and the administrator of?
Let’s start with a scenario: Mom and Dad created a trust and funded the property to the trust properly (which means the property was deeded to the trustees of the trust). Mom and Dad tell their two children that one of them will act as the successor trustee of the trust if something were to happen to them. 20 years or so later after Mom and Dad have passed, the two siblings agree that they should sell mom and dad’s home. They speak with an agent and list the property to sell. The agent does the right thing by opening a title order right away so we can get the preliminary title report and I review it for problems. Vesting shows the property is held in trust and that mom and dad are the trustors/trustees. I question the agent if the trustees are the signers. The Agent states that it is the successor trustee that is selling the property, not the initial “Trustors/Settlors.”
Title requires the trust be produced (well, parts of the trust) for review to verify that the person that says they are the successor trustee actually is the successor, and can do all acts for the trust needed (such as sell the house). There is more to it but such is not relevant to the story.
The Agent markets the property and it goes into Escrow, YAY! Title tells escrow we need a copy of the trust to verify signor(s). Escrow requests the trust from the seller. After multiple requests and still not getting the trust, I reach out to the agent.
In comes the problem: Seller now relays to the agent that the trust cannot be found. Title cannot verify who the seller is. What happens now? Probate with a “lost trust” kicker...
Probate has a pretty well-defined cost based on the value of the estate and that pretty much….is what it is. Now you need to add the hours, the attorney time, and time to process the issues of not having the trust. And that’s where it can get very costly.
If there's any evidence of the trust, even a copy signed by the settlors/trustors, that can be used to validate the power of the successor trustee to sell the property. Find it and produce it for the title company’s use. It may be acceptable, it may not, but get it. If there's absolutely no evidence that the trust ever existed (other than the deed), the matter is going to have to go to the probate court for orders on how to sell the property. In this case, most agree that that a type of probate will need to be filed. If there are partial copies of the trust or witnesses to the document, locate them and share the information with the title company. There may be a way to validate the trust without court intervention.
If there is not enough information for a title company to validate the trust for purposes of title insurance, a probate filing will most likely be required so a signed Order of the Court can authorize the property to be sold.
I hope you found this little conversation over coffee between Guy and myself educational or better yet entertaining. If you have a title question you know to call me. If you need an estate planner or probate attorney: I got a Guy.
How to find Guy Kirkpatrick:
Guy L. Kirkpatrick
KLG,APC Attorneys
[email protected]
Office Ph: 714-998-1717
