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Christopher B, Esq
Christopher B, Esq, Attorney
Category: Estate Law
Satisfied Customers: 2937
Experience:  Litigation Attorney with education focus on estate planning and tax
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A relative who just passed set up a trust to be divided

Customer Question

Hi, a relative who just passed set up a trust to be divided among multiple family members including me. The trustee is the relative's husband (still alive). He will be the trustee of the trust until his death at which times the funds will be distributed. Legally speaking, do I have the legal right to view the trust. He says his attorney said he doesn't have to show the trust to anyone.
Submitted: 9 months ago.
Category: Estate Law
Expert:  Christopher B, Esq replied 9 months ago.

My name is***** and I will be helping you with your question today. This is for informational purposes only and does not establish an attorney client relationship.

The trustee does not have to furnish a copy of the trust if the trustee issues a certification to the beneficiaries (see statute below). You can demand to see a copy of it but you have to have a good faith reason to do so which would probably entail some sort of thought that the trustee was in breach of his or her duties regarding the trust."A person making a demand for the trust instrument in addition to a certification of trust or excerpts is liable for damages if the court determines that the person did not act in good faith in demanding the trust instrument."

(760 ILCS 5/8.5)
Sec. 8.5. Certification of trust.
(a) Instead of furnishing a copy of the trust instrument to a person other than the beneficiary, the trustee may furnish to the person a certification of trust containing the following information:
(1) a statement that the trust exists and the date the trust instrument was executed;

(2) the identity of the settlor;
(3) the identity and address of the currently acting trustee;

(4) the powers of the trustee;
(5) the revocability or irrevocability of the trust, whether the trust is amendable or unamendable, and the identity of any person holding a power to revoke or amend the trust;

(6) the authority of co-trustees to sign or otherwise authenticate and whether all or less than all are required in order to exercise powers of the trustee;

(7) the trust's taxpayer identification number; and
(8) the manner of taking title to trust property.
(b) A certification of trust must be signed or otherwise authenticated by one or more of the trustees. A third party may require that the certification of trust be acknowledged.
(c) A certification of trust must state that the trust has not been revoked, modified, or amended in any manner that would cause the representations contained in the certification of trust to be incorrect.
(d) A certification of trust need not contain the dispositive terms of a trust.
(e) A recipient of a certification of trust may require the trustee to furnish copies of those excerpts from the original trust instrument and later amendments which designate the trustee and confer upon the trustee the power to act in the pending transaction.
(f) A person who acts in reliance upon a certification of trust without knowledge that the representations contained therein are incorrect is not liable to any person for so acting and may assume without inquiry the existence of the facts contained in the certification. Knowledge of the terms of the trust may not be inferred solely from the fact that a copy of all or part of the trust instrument is held by the person relying upon the certification.
(g) A person who in good faith enters into a transaction in reliance upon a certification of trust may enforce the transaction against the trust property as if the representations contained in the certification were correct.
(h) A person making a demand for the trust instrument in addition to a certification of trust or excerpts is liable for damages if the court determines that the person did not act in good faith in demanding the trust instrument. A person required to examine a complete copy of the trust instrument for purposes of complying with applicable federal, state, or local law, a person acting in a fiduciary capacity with respect to a trust, and the Attorney General's Charitable Trust Bureau are deemed to be acting in good faith when demanding a copy of the trust instrument. This Section does not modify or limit any obligation a trustee may have to furnish a copy of a trust instrument to the Attorney General under the Charitable Trust Act or the Solicitation for Charity Act.
(i) This Section does not limit the right of a person to obtain a copy of the trust instrument in a judicial proceeding concerning the trust.
(j) A certification of trust may be substantially as follows, provided that nothing in this subsection (j) shall invalidate or bar the use of a certification of trust in any other or different form:

CERTIFICATION OF TRUST

Name of trust:................................................
Date trust instrument was executed:..........................
Tax Identification Number of trust (SSN or EIN):.............
Name(s) of settlor(s) of trust:.............................
Name(s) of currently acting trustee(s):......................
Address(es) of currently acting trustee(s):..................
.... This trust states that .... of .... co-trustee(s) are required to exercise the powers of the trustee.
.... The co-trustees authorized to sign or otherwise authenticate on behalf of the trust are:.
.... There are no co-trustees authorized to sign or otherwise authenticate on behalf of the trust.
Name(s) of successor trustee(s):..............................
The trustee(s) has (have) the power to (state, synopsize, or describe relevant powers):.
Title to the trust property shall be taken as follows (for example, "John Doe and Jane Doe, co-trustees of the Doe Family Living Trust, dated January 4, 1999"):.
..............................................................
.... This is an irrevocable trust.
.... This is a revocable trust. Name(s) of person(s) holding power to revoke the trust:.
.... This is an unamendable trust.
.... This trust is amendable. Name(s) of person(s) holding power to amend the trust:.

I (we) certify that the above named trust is in full force and has not been revoked, modified, or amended in any manner which would cause the representations in this Certification of Trust to be incorrect.

IN WITNESS THEREOF, each of the undersigned, being a trustee of the above-named trust with the authority to execute this Certification of Trust, does hereby execute it this ..... day of .........., .......

Trustee Signature: .............
Printed Name: ..................

Trustee Signature: .............
Printed Name: ..................

[OPTIONAL:
This instrument was signed and acknowledged before me on .........., ...... (date) by (name/s of person/s):.

(Signature of Notary Public):
............................
(SEAL)]
(Source: P.A. 99-337, eff. 8-10-15.)

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Expert:  Christopher B, Esq replied 9 months ago.

Just checking back in, do you have any further questions?