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TRUST LITIGATION

We represent trustees, beneficiaries, and heirs in cases involving trust contest, a disputed trust amendment, claims of breach of fiduciary duty, trust accounting, fiduciary misconduct and fraud, trustee theft, investment mismanagement, waste financial elder abuse, incapacity, and undue influence.

When Do I Need a Trust Litigation Attorney?

A trust litigation attorney becomes necessary when disputes arise during the organized distribution of property from one generation to another, e.g. heirs and beneficiaries. Typically, a trust is constructed in such a way that instructions are clearly stated. However, despite a well-crafted trust document being in place, legal issues can and do still come up, requiring the services of a trust litigation attorney.

What Happens If You Violate a Trust?

If you are serving as a trustee of a trust, you have many essential duties to fulfill. One of these responsibilities is to uphold the terms of a trust. Another is to discharge your obligations under the law.  If you violate the law or fail to uphold the terms of a trust in any way, it likely will be considered a breach of trust. When a trust breach occurs, a probate court can impose serious consequences and penalties, including suspension or removal as trustee or being surcharged – probate for being ordered to pay money – for damages caused by the breach. In rare and extreme cases, trustees can even face criminal charges.

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What Would Make a Trust Invalid?

A trust is a legal relationship whereby property is held by one person for the benefit of another. In order for a trust to be valid, the trust must have been created and funded according to the requirements of the law. If any of these conditions are not met, an interested party may be able to initiate a legal proceeding known as a “trust contest” to attempt to invalidate the trust.

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How Do You Protect Yourself As a Trustee?

How do you protect yourself as a trustee? The first step is to take the time and learn more about what you are signing up for.  Do your research, ask questions, consult a trust attorney, and ensure you understand the duties and obligations that need to be fulfilled as trustee. Your legal liabilities can be high if you don’t take the time to understand the risks and responsibilities involved in serving as trustee.

To ensure you are protected, you must fulfill your legal duties and obligations. If you violate your duties to the trust and its beneficiaries, you can be removed as trustee, or in some cases, sued.

A few steps you can take to protect yourself as a trustee include:

  • Read, understand, and comply with the terms of the trust instrument.
  • Keep records of trust transactions, how you spend your time, and the reasons for your decisions.
  • Retain a trust attorney to assist with the administration of the trust.

Is a trustee protected?

A trustee has the protections afforded under the trust and at law, but if you are found to be in breach of trust or if you violate your fiduciary duty to trust beneficiaries you can be held personally liable for any loss.

As a trustee, you must follow the terms of the trust. If you violate the trust, even accidentally, you might find yourself on the wrong end of a lawsuit. Trustees may also be sued for issues like mismanaging trust property, conflicts of interests, embezzlement, or even failing to account or keep beneficiaries informed.

To protect yourself as a trustee, you should work with an experienced trust attorney to ensure you are discharging your legal duties.

What happens when a trustee does not follow the trust?

If a trustee does not follow the trust, they may be subject to removal for breach of trust.

Under California Probate Code §15642, a trustee may be removed as provided for in the trust, usually where beneficiaries have a right to remove and replace a trustee, or the probate court can remove a trustee on its own motion or upon the request of a settlor, co-trustee, or beneficiary.

Breach of trust is one of the most common reasons that trustees are removed. Under California Probate Code §16400, a breach of trust may occur when the trustee violates one of their duties, such as:

  • The duty to comply with the terms of the trust instrument.
  • The duty to treat beneficiaries fairly and act in their best interest.
  • The duty to maintain trust property separate from personal property.
  • The duty to avoid using trust property for their own benefit.

If a trustee has failed to meet one or more of their obligations, a beneficiary or another trustee can petition the probate court to request that the trustee be removed and surcharged for any damage caused by the breach. Once the petition for removal is filed (often preceded by a petition for suspension if warranted), the court will schedule a hearing to determine whether the trustee should be removed. At that hearing all interested parties – i.e. beneficiaries, heirs, co-trustees, and/or successor trustees – have an opportunity to state their position.  Depending on the gravity of the allegations and evidence, the judge may suspend the trustee and appoint a replacement trustee pending determination on the removal petition at a later hearing or trial.  At that later time the court also may order the trustee to pay money damages to the trust or the beneficiaries in some situations, as well as legal fees and court costs, what is known as a “surcharge” in probate parlance.

When should I contact a trust litigation attorney?

The best way to protect yourself is to contact a probate lawyer or trust attorney as soon as you consent to serve as trustee. An experienced trust lawyer can help you ensure you fulfill your legal obligations and avoid taking actions that could subject you to personal liability.

Even if you didn’t retain an attorney when you began serving as trustee, a trust litigation lawyer can help you at any time an issue arises. If you’ve been accused of wrongdoing such as breach of trust, you should contact a trust litigation attorney as soon as possible to discuss your options and, possibly, avoid or at least manage your potential liability.

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Do I Need a Lawyer As a Trustee?

While you are not legally required to retain a lawyer to accomplish many of your fiduciary duties as trustee, working with a trust attorney is generally a good idea for professional and family/friend trustees alike, particularly if you have not administered a trust before or you’re unfamiliar with a specific trust or some of its …

How Much Should a Trustee Be Paid in Fees?

Trustees are tasked with the trying —and often thankless— job of managing trust assets to benefit the trust’s beneficiaries. In exchange for their services, California Probate Code §15681 allows trustees to receive “reasonable compensation.” However, if the trust document itself specifies different pay arrangements, then under Probate Code §15680, trustees are legally entitled to be compensated according to the terms of the trust.

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TRUSTEES

We represent individual trustees, professional private fiduciaries, and trust companies understand and execute their duties and responsibilities as trustee, including explaining trust documents and interplay with trust amendments and restatements, assisting with marshaling, inventorying and appraising assets, investigating and responding to creditor claims, preparing accountings, coordinating with tax and other professionals, determining distributions to trust beneficiaries, and seeking judicial approval of trustee acts or omissions, where necessary, so your trust administration is efficient and cost-effective, and so you are protected.

EXECUTORS

Discovering that you have been named executor of a will or that you need to get appointed administrator of a probate estate, especially while dealing with the loss of a loved one, can be overwhelming. We have the expertise to guide you through the appointment process, handling all of the paperwork and probate hearings so you don’t have to, walking you through your duties and responsibilities, preparing accountings, coordinating with tax and other professionals, and responding to beneficiaries so your estate and probate administration is worry free, cost-effective, and efficient.

BENEFICIARIES AND HEIRS

Whether you are an heir, a trust beneficiary, a will beneficiary involved in a probate, or the beneficiary of a bank account, a pension, a 401k or other retirement account, or a life insurance policy, we have the experience to advise you of your rights, what you can expect, when you can expect it, and help guide you through your trust, estate or probate administration, to fight to get what’s yours if you are involved in a trust, estate or probate litigation, and to protect you from abuse by fiduciaries, beneficiaries, and others, including protecting you or your loved ones from financial elder abuse.

CREDITORS

Creditors are people, businesses, or anyone else to whom a decedent owed money at the time of death. Most states probate laws require that creditors act within a limited amount of time after a debtor passes to assert their claims, and if they fail to act within that time or fail to follow the specific procedures and methods prescribed by state probate law, their claims may be time-barred and lost forever. These rules apply similarly when litigation is pending against a defendant who dies during a case. If you are owed money by someone who passed, we can help you recover it.

CONSERVATORS/GUARDIANS

A conservatorship is a process by which a court appoints someone to care for you or your loved one when you or they are unable to provide self-care for their health needs (conservator of the person) or self-manage finances (conservator of the estate), including resisting undue influence and becoming a victim of financial elder abuse. If you think you or a loved needs help or has been or may become the victim of abuse, or if someone is seeking to establish an unnecessary conservatorship for you or a loved one, we can help prosecute or defend your conservatorship.

SPOUSES

Spouses enjoy a special status under many state probate laws that give them special inheritance rights and benefits, including priority for appointment as executor for a deceased spouse’s estate, a right to seek a family allowance for life’s necessities during the pendency of an administration, an ability to pursue a spousal property petition and possibly avoid probate altogether, and, in some states, community property rights.  Entitlement to these rights and the legal procedures that need to be followed to protect them are complex, especially when complicated by family law issues like prenuptial agreements.  If you are a surviving spouse, even if you were in the middle of a divorce at the time of death, we can help you.

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(424) 320-9444
hello@rmolawyers.com
(949) 226-8509
hello@rmolawyers.com
(619) 323-3200
hello@rmolawyers.com
(805) 308-7333
hello@rmolawyers.com
(816) 705-1033
hello@rmolawyers.com
(786) 761-8333
hello@rmolawyers.com