Can a Trust Be Viewed by Beneficiaries Before the Death of the Testator?

by John Stevens

Beneficiaries of a trust often want to know what they stand to inherit upon the death of the person who established the trust, sometimes called a testator, even before the testator dies. The testator is always free to disclose the terms of the trust to the beneficiaries. If the testator loses competency, the "successor trustee" takes over and manages the property. Compelling a successor trustee to disclose the terms of the trust to the beneficiaries can be difficult, but there are methods of doing so in certain circumstances.

With Testator’s Permission

Asking the testator to disclose the terms of the trust is perhaps the easiest way to learn of the trust’s contents. The beneficiaries should avoid asking the testator to change the trust after viewing it, however. Any later modification, particularly one that benefits the requesting beneficiary, could be challenged on the basis that the requesting beneficiary pressured the testator into making the change. The beneficiaries cannot compel the testator to disclose the terms of the trust while the testator is mentally competent.

Accounting Requirements

Upon the testator’s incapacity, the successor trustee named in the trust takes over the management of the trust property on behalf of the testator. The successor beneficiary is responsible for keeping records about any transaction concerning trust property, and must provide those records to the beneficiaries. This obligation, called accounting, is designed to provide the beneficiaries with the ability to determine whether the successor trustee is properly managing the property. The accounting process may require the successor trustee to disclose the terms of the trust to the beneficiaries so that the beneficiaries can decide whether the trustee is following the terms of the trust.

Viewing the Trust to Revoke It

If the testator lacks competence, the beneficiaries may revoke the trust with the court’s permission. The beneficiaries must file an action in court to revoke the trust. States vary as to when the beneficiaries can revoke a trust, and doing so can be challenging. In most states, the beneficiaries cannot revoke a trust if any “material provision” of the trust remains. For example, if the trust specifies a payment on a certain date and that date has not yet arrived, that payment is probably a “material provision” and a court will most likely deny the request. A few states allow the beneficiaries to revoke a trust even if a “material provision” remains. The key question, of course, is whether there exists some material provision that remains unsatisfied. If the trustee will not reveal the terms of the trust to the beneficiaries, the beneficiaries can bring an action to revoke the trust and can review the trust as part of that action.

Court Remedies Against the Successor Trustee

If the successor trustee refuses to disclose the terms of the trust to the beneficiaries and the beneficiaries have reason to believe that the trustee is mismanaging the trust property, a number of remedies are available. Perhaps the most common remedy in this situation is money damages. Money damages can compensate the beneficiaries for any loss in value caused by the mismanagement, for any profit the trustee made from the trust property, and for any lost profit the trust would have earned if not for the trustee’s mismanagement. A court can also award a special kind of money damages, called punitive damages, that are designed to punish a trustee who has intentionally or recklessly mismanaged trust property. Courts also have the ability to remove a trustee for mismanaging property and for failing to disclose the terms of the trust for accounting purposes.