Does the IBA have an all-inclusive trust department document retention schedule? If not, are you aware of any other guides containing this information?

The IBA does sell a Guide to Bank Record Retention, which contains recommended retention periods for trust-related documents based on state and federal law, but it has not been updated since 2014, and some of the information in the manual now is out-of-date. We are not aware of any other guides containing such information.

If your bank’s trust department maintains original copies of trust instruments, including their codicils and amendments, we recommend retaining those documents permanently, in their original form (i.e., not as scanned or electronic copies). The general rule in Illinois is that electronic versions of documents have “the same force and effect under the laws of this State” as hard copies of documents, but this rule is inapplicable to trust instruments and their codicils and amendments.

Other trust-related documents should be retained for at least three years after the termination of the trust account or litigation related to the account (if any), whichever is later. This recommendation stems from an OCC rule regarding fiduciary accounts related to trusts. While we note that you are a state bank and your primary federal regulator is the FDIC, which has not adopted a similar requirement, we believe that the OCC rule provides helpful guidance in this regard.

For resources related to our guidance, please see:

Financial Institutions Electronic Documents and Digital Signature Act, 205 ILCS 705/10(a) (“If in the regular course of business, a financial institution possesses, records, or generates any document, representation, image, substitute check, reproduction, or combination thereof . . . that accurately reproduces, comprises, or records the agreement, transaction, act, occurrence, or event . . . [it] shall have the same force and effect under the laws of this State as one comprised, recorded, or created on paper or other tangible form by writing, typing, printing, or similar means.”)

Uniform Electronic Transactions Act, 815 ILCS 333/7(a) (“A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.”)

Uniform Electronic Transactions Act, 815 ILCS 333/12(a) (“If a law requires that a record be retained, the requirement is satisfied by retaining an electronic record of the information in the record which: (1) accurately reflects the information set forth in the record after it was first generated in its final form as an electronic record or otherwise; and (2) remains accessible for later reference.”)

Uniform Electronic Transactions Act, 815 ILCS 333/3(b) (“This Act does not apply to a transaction to the extent it is governed by: (1) a law governing the creation and execution of wills, codicils, or testamentary trusts.”)

OCC Fiduciary Rules, 12 CFR 9.8(a) (“A national bank shall adequately document the establishment and termination of each fiduciary account and shall maintain adequate records for all fiduciary accounts.”)

OCC Fiduciary Rules, 12 CFR 9.8(b) (“A national bank shall retain records described in paragraph (a) of this section for a period of three years from the later of the termination of the account or the termination of any litigation relating to the account.”)

OCC Fiduciary Rules, 12 CFR 9.8(c) (“A national bank shall ensure that records described in paragraph (a) of this section are separate and distinct from other records of the bank.”)