Your father died three weeks ago. Somebody in the family is fairly sure he had a trust done, maybe in the early 2000s, maybe by an attorney whose office used to be on Foothill. Nobody can find the document, and nobody remembers the firm’s name. This is not an unusual situation, and it has a specific and expensive ending.
“Did you happen to do a trust for my dad?”
Jason Gaudy, an estate planning attorney at Gaudy Law in Upland, California, says his office fields that call about once a month. A parent has died, the family believes a trust exists somewhere, and the plan has been reduced to phoning estate planning offices around the county and asking.
“We have these calls once a month, somebody calling saying, did you happen to do a trust for my dad?” he says.
Gaudy has practiced for 23 years, and his firm’s work splits roughly evenly between planning and what happens after a death. The missing-document call lands squarely in that second half.
Why documents from 20 years ago are the ones that vanish
Gaudy draws the line at roughly the last 10 to 15 years. Firms drafting in that window have had the technology to save everything, so a copy usually exists on a server even when the client’s binder has disappeared.
Go back further and it changes. Many of the old-school attorneys who did that work have since retired or passed away, and they never kept digital files. The work product was paper. When both the drafting attorney and the paper are gone, there is no backup to request.
What happens when the deed says “trust” and there is no trust
This is the version that ends up in court, and Gaudy had one open the day of the interview.
The property is deeded to the trust. County records show the trust as the owner. But the trust instrument itself cannot be located, and that document is the only thing that establishes who the successor trustee is (the person who takes over managing the trust after the original trustee dies) and who the property is meant to go to.
So the family has to go to probate court to get the property back out of the trust. Probate is the court-supervised process for transferring assets after a death, and it is precisely the process the trust was bought to avoid. In Gaudy’s California practice, he puts average probate fees around $15,000 to $20,000, not counting the administrator’s compensation or court costs, and says the estate typically stays open about a year.
Even narrower title fixes are not cheap. He describes a cousin of this problem, property pulled out of a trust during a refinance and never put back, that takes a court petition running roughly $5,000 to $7,000 and three to four months. These are California figures and California procedures. Both the cost and the mechanism differ from state to state.
Where Gaudy says the documents should live
His practical instruction is short. Keep the deed, the trust, and all the related documents somewhere people can actually find them. Put it in digital form. Make sure your kids know where it is.
That last clause does most of the work. Storage only you know about is not storage.
At his own firm, client documents sit on a system called MyCase, where clients have access through an app. The particular platform matters less than the properties it has: the document outlives the client’s filing cabinet, survives a move, and can be reached by somebody other than the person who died.
The document is only half of what your family needs
Knowing where the trust is does not tell anyone what the trust holds. Gaudy’s other standing request is an inventory: an actual list of everything you own, kept current with your attorney, your CPA, and your financial advisor. He describes one client whose asset list took four months to assemble because the man had bought and sold so many properties he had lost track of what he still held.
Findable documents plus a current list of assets is the entire ask. Neither is legal work. Both are the difference between a family that calls a lawyer once and a family that spends a year in court.
Worth adding: a trust that was signed but never funded fails the same way a lost one does. DIY and never-funded trusts produce the same courtroom outcome, and the family finds out at the same moment.
What this means if you’re planning a 1031 exchange
An exchange generates paperwork your heirs will eventually need and have almost certainly never seen: the exchange agreement, closing statements from both ends, the deed vesting the replacement property, and the basis records carried over from the property you sold. The vesting on that new deed also has to line up with how your trust holds title, or you have quietly recreated the mismatch described above with a brand-new property. The weeks right after a closing are when files get boxed up and forgotten, which makes it the natural moment to add the new documents to wherever the trust already lives. If you want a second set of eyes on how a replacement property should be titled, get in touch before the closing rather than after.
Watch: Where's the Trust? Keep Your Estate Documents Findable for Your Heirs with Jason Gaudy, Gaudy Law
Educational only. Not legal, tax, or investment advice. Jason Gaudy is licensed in California; rules vary by state. Consult your own advisors.