© 2026 Wealth Care Lawyer — Klaus Gottlieb, Esq. Serving the California Central Coast.
Jurisdiction: California Primary Statutes: Cal. Prob. Code §§ 6111, 6120, 6124, 8223 (wills); §§ 15400, 15401, 15402, 15403, 15404, 17200 (trusts); § 18100.5 (certification of trust — discussed in prevention note) Key Cases: Lauermann v. Superior Court (2005) 127 Cal.App.4th 1327 Last Reviewed: 2026 Category: Wills | Trusts | Document Management
A lost will and a lost trust are not the same problem, and they are not governed by the same legal rules. Under California Probate Code § 6124, if a will was last in the testator’s possession and cannot be found after death, the law presumes the testator destroyed it with intent to revoke it. That presumption can be rebutted — but it must be, and the burden falls on whoever seeks to enforce the will.
No comparable statutory presumption applies to a lost revocable living trust. A trust creates ongoing fiduciary obligations between the trustee and the beneficiaries — obligations that survive the disappearance of the document that created them. The terms of a lost trust can be established through a court petition under § 17200. If the settlor is still alive and competent, a new trust can be executed that expressly revokes all prior trusts — but only if the revocation is effective, which depends on whether the original trust specified an exclusive revocation method and whether any portion of the trust became irrevocable at the first spouse’s death.
That last point is where the lost trust problem can become a genuine legal crisis. A married couple’s trust that contained an A-B or similar structure created two legally distinct trusts at the first death — one revocable by the survivor, one not. If the original document is lost and the survivor cannot recall whether any portion became irrevocable, the threshold question of what they can legally do with the remaining trust assets cannot be answered without either reconstructing the document or going to court. Acting on a wrong assumption — treating an irrevocable trust as if it were revocable — can constitute a breach of fiduciary duty and create liability for both the surviving spouse as trustee and any attorney who advises them without proper diligence.
For wills, California has a clear statutory rule. § 6124 states:
“If the testator’s will was last in the testator’s possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator’s death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence.”
All three conditions must be satisfied for the presumption to arise: (1) the will was last in the testator’s possession, (2) the testator was competent until death, and (3) neither the original nor a duplicate original can be found. When all three are met, California law treats the will as having been intentionally destroyed — and the estate passes by intestacy unless the presumption is overcome.
The presumption is rebuttable. It is a “presumption affecting the burden of producing evidence” under Cal. Evid. Code § 604, which means it dissolves as soon as credible contrary evidence is introduced. Arguments that can rebut the presumption include: testimony that the will was kept in a location the testator did not exclusively control; evidence that another person had access and motive to destroy it; a convincing account of accidental loss; or circumstances — a house fire, a flood, a move — that explain the disappearance without imputing intent.
⚠️ CRITICAL ISSUE: A photocopy does not substitute for an original. Lauermann v. Superior Court (2005) 127 Cal.App.4th 1327 confirmed that a photocopy is not a “duplicate original” for purposes of § 6124. If only a photocopy exists and the original is missing, the § 6124 presumption applies in full. The photocopy standing alone is insufficient to defeat it — affirmative testimonial or circumstantial evidence is required.
Even when the presumption applies, probate of a lost will is not foreclosed — it is simply harder. § 8223 permits a petition for probate of a lost or destroyed will, but the petition must summarize the testamentary provisions and overcome the presumption with evidence that the will was not intentionally destroyed. If the court is persuaded, the will can be admitted to probate on its reconstructed terms.
The practical challenge is that oral testimony about a will’s contents, standing alone, is difficult to credit with precision. Witnesses tend to remember general intentions — “she wanted everything to go to her children equally” — not specific provisions about powers of appointment, trustee succession, or tax elections. A photocopy, if available, is the most useful evidence in a § 8223 proceeding even though it cannot substitute for the original for purposes of § 6124.
A will is a unilateral document. The testator can execute a new will at any time, with no preconditions and no need to follow the old will’s terms. The most recent valid will supersedes all prior wills. If the old will is lost and the testator is alive and competent, the solution is simple: execute a new will. The lost document becomes legally irrelevant.
California has no equivalent of § 6124 for trusts. A revocable living trust that cannot be found is not presumed to have been revoked. This cuts in opposite directions depending on the circumstances: it protects beneficiaries of the trust (the trust survives its disappearance), but it also means the trust continues to bind the trustee to terms that no one can read.
The trust relationship does not disappear when the document does. The trustee still holds legal title to trust assets as trustee, the beneficiaries still have equitable interests, and the obligations of trust administration continue. What disappears is the roadmap.
When the trust is lost and the settlor is still alive and competent, the instinctive response is to execute a new trust that expressly revokes the prior one and start fresh. Under Cal. Prob. Code § 15400, a trust is presumed revocable unless the instrument expressly makes it irrevocable, and under § 15401, the settlor may revoke by a written instrument delivered to the trustee. A new trust that contains standard revocation language — “I hereby revoke all prior trusts” — would appear to accomplish this.
But this approach is only safe if two conditions are satisfied:
First: the lost trust did not specify an exclusive revocation method.
§ 15401 provides a default revocation procedure, but the trust instrument can override it by specifying that revocation may only be accomplished in a particular way — for example, only by a notarized instrument, or only by a document that references specific trust provisions, or only by an instrument delivered to a named trustee by a specified method. If the lost trust specified such an exclusive method, and that method is not followed, the new trust’s generic revocation language may not legally revoke the prior trust. The prior trust would remain technically in force, its terms provable through other evidence.
Because the original document is gone, no one knows whether it specified an exclusive revocation method. This uncertainty cannot be resolved by assumption. The safe approach when the revocation terms of the lost trust are unknown is to execute both a standalone written revocation under the § 15401 default procedure and a new comprehensive trust — and to consider a § 17200 petition to have a court confirm the revocation if there is any realistic possibility the lost trust contained exclusive revocation requirements.
Second: no portion of the trust has already become irrevocable.
This is the more consequential problem, and it is addressed in detail below.
Many married couples execute a joint revocable living trust with provisions that cause the trust to bifurcate at the first death. The most common structure divides the trust into two shares: the survivor’s trust (sometimes called Trust A), which remains fully revocable and amendable by the surviving spouse, and a bypass, credit shelter, or family trust (sometimes called Trust B), which becomes irrevocable at the first death and is administered for the benefit of the surviving spouse and/or children, with the remainder passing to children or other beneficiaries at the survivor’s death.
When the original document is lost and the first spouse has already died, the surviving spouse faces a threshold question that the article so far has not yet answered: was any portion of this trust rendered irrevocable at the first death, or does the surviving spouse retain full revocation authority over the entire trust?
This question has enormous practical consequences:
⚠️ CRITICAL ISSUE: The surviving spouse is typically both the primary beneficiary and the successor trustee of both trust shares after the first death. In the trustee role, their fiduciary duty runs to the remainder beneficiaries of the irrevocable share — who are often their own children. If they treat irrevocable trust assets as their own revocable property, they are in breach of that duty, even if they did so unknowingly because the document was lost and they did not remember the trust’s structure. Ignorance of the trust terms does not extinguish the obligation to honor them.
The further complication is that proper administration of an A-B structure requires a formal allocation of assets between the two shares at the first death — typically an amount equal to the decedent’s applicable estate tax exemption allocated to the irrevocable share, with the remainder in the survivor’s revocable share. If no allocation was ever documented and the original trust is now lost, it may be impossible to reconstruct which assets belong to the irrevocable share and which the survivor freely controls, particularly years after the first death when asset values have changed.
Before any legal action or document execution, conduct a thorough search and document every step of it. The places to look, in rough order of likelihood:
After exhausting the above sources without success, a broadcast inquiry through the local bar association’s estate planning section listserv is a recognized professional practice — not legally required, but an important step in establishing that a diligent search was conducted. In a county like San Luis Obispo, where the estate planning bar is small and practitioners know each other’s work, a listserv inquiry has a reasonable chance of reaching an attorney who drafted the trust, worked as an associate at the drafting firm, administered a related estate, or has relevant knowledge.
This step is not a legal requirement, but its absence will be noticed if the matter later goes to court or a malpractice claim arises. It is one concrete, documentable step in the record of reasonable diligence.
If the settlor is alive and competent, the single most important evidentiary step — before any document is executed or court petition filed — is to obtain a detailed sworn affidavit from the surviving settlor about everything they recall regarding the lost trust. This should be done promptly, while memory is intact and the settlor is clearly competent.
The affidavit should address:
This affidavit serves multiple purposes. It is admissible evidence in a § 17200 proceeding. It establishes the factual basis on which the advising attorney proceeds, protecting that attorney if the assumptions later prove incorrect. And it captures the survivor’s recollection before it degrades further or becomes unavailable due to incapacity or death.
No document should be executed — no new trust, no deed, no account retitling — until the threshold question is resolved: was any portion of this trust rendered irrevocable at the first death, or does the surviving settlor retain full revocation authority?
If the affidavit and corroborating evidence clearly support the conclusion that the trust was fully revocable by the survivor and no A-B or similar structure existed, the path forward is:
If the evidence is ambiguous — or if there is any realistic possibility that an irrevocable share was created at the first death — proceed to a § 17200 petition before taking any unilateral action.
Cal. Prob. Code § 17200(a) provides that a trustee or beneficiary may petition the court to determine the existence of the trust and concerning its internal affairs, including “determining questions of construction of a trust instrument” and “determining the existence or nonexistence of any immunity, power, privilege, duty, or right.”
A § 17200 petition to establish the terms of a lost trust asks the court to make findings about what the trust said, based on the evidence available: the surviving settlor’s affidavit, testimony from the drafting attorney or their associates, prior tax returns and trust schedules, account statements and property records showing how assets were titled and administered, and any other documents that shed light on the trust’s structure and terms.
This is the conservative and litigation-proof path when the terms of the lost trust — particularly its revocability — are genuinely uncertain. A court order establishing the trust’s terms and confirming whether the surviving settlor’s revocation authority extends to the entire trust provides a clean legal foundation for everything that follows, and insulates the trustee from later claims that they acted on incorrect assumptions.
If an irrevocable share is confirmed to exist, the survivor’s options as to that share are limited: administration according to whatever terms can be reconstructed, modification by consent of all beneficiaries under § 15403, or court-ordered modification under § 15404 if continuation on unknown terms would defeat the trust’s purposes.
| Situation | Lost Will | Lost Revocable Trust (No Prior Death) | Lost Trust After First Spouse’s Death |
|---|---|---|---|
| Statutory presumption | Yes — § 6124 presumes revocation | No presumption | No presumption |
| Settlor alive and competent | Execute new will | Execute new trust with revocation clause; confirm revocation method | Cannot act until threshold question resolved |
| Key threshold question | Was original revoked or lost? | Did lost trust specify exclusive revocation method? | Was any portion rendered irrevocable at first death? |
| Best evidence | Photocopy + witness testimony | Surviving settlor’s affidavit; attorney file | Surviving settlor’s affidavit; tax returns; account records |
| Court involvement required | Only if contested | Only if revocation method uncertain | Often required; § 17200 petition recommended |
| Starting fresh | Straightforward | Possible with care | Depends entirely on what became irrevocable |
The problem described in this article is entirely avoidable. Every settlor should:
One additional note: § 18100.5 permits a Certification of Trust to be recorded with the county recorder’s office, but only in connection with real property held in the trust, and only when the certification includes the legal description of that property. This is a transactional tool for establishing the trustee’s authority in real estate dealings — it does not preserve the trust document itself and is not a substitute for the document management practices above.
NOT LEGAL ADVICE. This article is prepared for professional reference and educational purposes only. It does not constitute legal advice and does not create an attorney-client relationship. Legal and tax professionals must conduct their own independent research and due diligence before relying on any analysis contained in this article. Laws, regulations, and administrative interpretations are subject to change. Application of these principles to specific facts requires professional judgment that this article cannot substitute for.
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