Tag Archives: probate attorney

  • 03
    Jun 15
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Resolving Disputes Involving Trusts

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Resolving Disputes Involving TrustsTrusts are legal arrangements in which someone holds property for the benefit of someone else.

Trusts can minimize estate taxes and prevent the need for probate. Trusts also offer greater precision in wealth management and distribution, and can protect your legacy.

But given the human element involved in estates and trusts, disputes can arise when a trust is being settled, even if you’ve given proper care to creating a trust.

Some common examples of trust disputes include:

1. A trustee stealing or misusing money or property in the trust.
2. Questions over whether an amendment to a trust is legitimate.
3. Uncertainty regarding the running of a business, should the trust own a business.

What is a trust dispute, then?

Simply put: If you’re a trustee and family members accuse you of mismanaging the trust, you are involved in a trust dispute.

Or, if someone else is the trustee and that person is mismanaging or stealing assets (or accused of doing so), then you are (or probably should be) involved in a trust dispute.

I have experience in trust disputes. In one particularly lengthy trust dispute case, I represented a professional licensed fiduciary who was the trustee of a trust.

Even before her death, the woman who created the trust was aware that her two adult children had been fighting with each other over how her trust would be settled.

After her death, the younger sibling accused the older one of stealing money from the trust.

The older sibling accused the younger of convincing their mother to amend the trust after she had become incapacitated.

Both accused the other of elder abuse and wanted the other to be disinherited. The case was in a standoff for months. It progressed very slowly through the court system.

This case shows the mistakes people make when resolving trust disputes. These
include:

1. Trying to settle disputes without the assistance of an experienced probate litigation attorney.
This area of law is very complicated and confusing – even to lawyers who do not work regularly in the area of probate disputes.
Statutes of limitations can be detrimental to resolving disputes if the disputes are not handled properly (and within the required time).

2. Not going to court when there is the possibility of a conflict of interest.
If you are both trustee and beneficiary, it can be tricky to avoid the appearance of acting in self-interest when dividing assets.
In such situations you should file a petition with the court asking for court guidance on how to distribute the assets and avoid conflict of interest.

The best way to avoid mistakes when navigating a trust dispute is to enlist the support of a skilled probate litigation attorney.

With the assistance of a qualified attorney, you may be able to settle an affair outside of court, saving you time and money.

Either way, an experienced attorney will help you prevent, negotiate, settle and litigate disputes to avoid costly losses.

If you have any questions about resolving trust disputes, I’d love to help. Give us a call.

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  • 20
    May 15
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Solving Disputes Involving Estates

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Solving Disputes Involving EstatesResolving disputes over estates, wills and trusts is often a delicate process. In a previous post we looked at the definition of a probate dispute (a dispute or conflict among family members that arises while settling a deceased loved one’s estate). As we’d seen, resolution to these conflicts doesn’t always come easily. An experienced probate and dispute litigation attorney can help you navigate the complex and often-confusing situations associated with settling an estate.

Consider a case where I represented two brothers in an estate dispute. The father had died a number of years earlier, and the mother had remarried. Later, both she and her second husband passed away. Before their deaths, the mother and her second husband – the stepfather – had revised their estate plans so the stepdfather’s children were in charge of everything after both parents died.

Instead of selling and distributing the home and assets, the stepsiblings moved into the parents’ home and refused to distribute the estate. (The estate included personal items of my client’s father: military medals, family heirlooms, photos and other irreplaceable family keepsakes). The stepsiblings were even threatening to give away or donate many of these treasured family heirlooms.

I helped resolve this dispute by going to court and obtaining orders to force the stepsiblings to turn over the heirlooms. We negotiated a resolution that saved my clients a lot time, money and further heartache. In the end everything was distributed fairly according to their parents’ wishes.

That was one case, all-too similar to many others. Here are a few questions to consider in estate disputes, where the assistance of a dispute-litigation attorney is beneficial:

  1. Who should be the personal representative or executor?
  2. Is the personal representative or executor doing what he or she is supposed to be doing?
  3. Is the will valid?
  4. Was there a will but is someone hiding it?
  5. Is a stepfather or stepmother in charge of the estate? Or are stepsiblings in charge of the estate?

The best way to solve an estate dispute is to address the issue when it arises, rather than waiting to see how it might play out. Seek the assistance of an experienced litigation attorney as soon as possible after your loved one passes away. This is true whether you have been nominated to be in charge of the estate or if you’re a beneficiary.

With an attorney assisting you in an estate dispute, you will have the advantage of an experienced guide to help you navigate a complex legal system. The dispute will be resolved in less time than if you were to attempt it on your own. You’ll also have peace of mind knowing that the estate will be settled as your loved one intended.

If you have any questions about resolving an estate dispute, please contact our office. We’d love to help.

[will write up an alternate CTA to send people to the quiz/whitepaper that will be the next step in the gravity well]

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  • 13
    May 15
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Probate Disputes: How to Deal with Estate Conflict After Someone has Died

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How to Deal with Estate Conflict After Someone has DiedSettling an estate after a loved one’s death is a complex process.  The process can be even more challenging if detrimental disagreements and conflict arise among the various people who believe they are entitled to an inheritance from the estate. The court offers a recourse to resolve such probate disputes.

Here are five of the most common probate disputes that arise after someone has died:

  1. Who should be in control of a deceased person’s property? (In other words, who should be named the Executor or Personal Representative?)
  2. Has a trustee or personal representative done something wrong? Or has that person failed to do what was required?
  3. Did someone do something wrong prior to the person’s death? (For example, did someone acting as a guardian or conservator or agent under a power of attorney do something wrong?  Perhaps a trustee helped himself or herself to money held in trust?)
  4. Who should get the property of a deceased person?
  5. Is the last will and testament valid or was it forged? Or was the deceased person pressured to sign it?

The most common probate disputes arise when the personal representative or executor of an estate is doing a poor job of fulfilling executory responsibilities.

Let’s look at a hypothetical example. When Sue dies, her son Richard is appointed as personal representative. Instead of selling Sue’s house and splitting the proceeds between his siblings (as Sue’s will specifies), Richard moves in and takes up permanent residence. He never sells the house or distributes the proceeds to the rest of the family.

To complicate matters further, Sue has had a mortgage on the home and a loan on her Buick. Her will had stated that these assets – the home, the car – were to be sold with the money from the sale distributed equally between her children, but Richard begins making the payments to the bank so the bank never complains.  Richard doesn’t take very good care of the house and car, and at some point, Richard loses his job and stops making the payments to the bank.  Now the value of the house and car have gone down and the bank is threatening to foreclose on the house and repossess the car.

Richard’s sister Beth has had enough and doesn’t want to see their mother’s legacy squandered by her brother’s failure to live up to his responsibilities as personal representative. Beth calls the police to get help evicting her brother, but the police wont’ get involved in such cases, except to prevent physical violence.

This is where probate court and a probate litigation attorney can help.

But probate should be brought in quickly. One of the biggest mistakes people make in situations similar to this is waiting too long to hire an attorney. Delayed action can result in disappearing assets.

Another common mistake is hiring an attorney who has little or no experience in probate litigation. An attorney without direct experience in resolving probate disputes won’t be able to advise you properly and may in fact leave you with the impression that nothing can be done.

Dealing with disputes when settling an estate can be quite tricky. Finding common ground in any situation may be extremely difficult without the help of a qualified lawyer. If you’re dealing with a complex situation, don’t attempt to handle the situation without the help of a skilled probate litigation attorney.

Probate attorneys do more than provide legal information. They will serve as your legal “coach” and will help you to arrive at the best possible outcome.

And working with an attorney who knows how to solve general probate disputes will give you confidence that your loved one’s estate will be handled properly.

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  • 22
    Apr 15
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What’s a Probate Emergency?

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What's a Probate EmergencyThings can get out of hand, even under the best circumstances, when caring for a loved one or settling an estate.

Probate court helps families arrange care for loved ones who are aging or incapacitated. After a loved one passes away, probate court helps a family sort through and settle their affairs.

It generally takes many months, sometimes more, to settle a case, depending on where you live and the complexity of your situation. Sometimes, however, families need immediate action from the court.

Here are a few examples of emergency probate situations that could require immediate legal intervention from probate court.
• If an elderly person is on the point of being evicted because bills haven’t been paid. A judge can appoint a temporary conservator to help resolve the situation until a permanent conservator can be appointed.

• If a person is not receiving necessary medical treatment for a life-threatening condition. The court can be petitioned to appoint a temporary conservatory.

• If assets are being stolen from the estate or trust of someone who has passed away, a judge can appoint a special administrator or special trustee.

Although some people feel that the police should be called in to resolve an emergency probate situation, the police have no jurisdiction in civil matters involving a guardianship, conservatorship, trust dispute or a decedent’s estate.

What people can do is provide evidence showing a high likelihood of imminent harm or danger unless the court acts immediately. For example, in a situation involving guardianships or conservatorships, you must present the judge with a physician’s note that clearly states, “An immediate guardianship is necessary.”

It’s essential to provide sufficient evidence to prevent a dismissal of any petition. This is where it’s important to have an attorney working with you. Most people who try to represent themselves to establish an emergency situation don’t know enough about the complexities of probate law to provide the judge or commissioner sufficient supporting information.

Here are a few of the other common mistakes people make in probate emergencies:

• Doing nothing after being told by the police the probate emergency is a civil matter.

• Taking away an elderly parent without letting anyone else know, to prevent the parent being placed into a nursing home you didn’t approve of. This can be considered a criminal action.

• Securing valuables from the decedent’s estate to protect them

A probate emergency situation arises when there is immediate danger, immediate harm to either a person, to property or the trust. You must be able to prove to the court that your situation requires immediate action. A lawyer can help with this to ensure the time response that is critical to helping you receive the assistance you need. You don’t have to navigate the waters of probate alone. We can help.

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  • 01
    Apr 15
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Administering a Trust with an Ongoing Business

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Administering a Trust with an Ongoing BusinessAdministering a trust with an ongoing business can be intimidating and overwhelming. It is even more tricky if the business needs to go through probate. And for good reason.

As a trustee or personal representative, you will be held to a high standard as you administer the trust, a standard higher than that the original owner was held to. And if you have specific knowledge (such as having owned a business before, being an attorney or CPA) you will be held to a higher standard still.

Here are three steps you can take as a trustee or personal representative that will help you better manage your responsibility as well as reduce your liability as you administer an estate or trust that has business or complex investments:

  1. Assemble a team. Even if you have experience with owning and operating a business or in managing an investment portfolio, you can be held accountable for making decisions that have a negative impact on the viability of the trust’s business or assets. Seek help from qualified professionals (CPA, probate attorney with experience working with businesses and other relevant advisors.)
  2. Delegate control. You need to find a qualified person to take responsibility or accountability for his or her actions in managing this business and operating it. That person must be committed to making the right decisions, even difficult ones such as firing family members. (This in particular is a common and difficult decision that must be made with a number of trusts.)
  3. Maintain communication. As personal representative or trustee, it’s your responsibility to keep beneficiaries informed of the state of the business or other assets.

Passing along the commitments and responsibilities of a business and business assets through a trust can be complicated. The trustee or personal representative who administers the estate should understand the responsibilities of the position.

Without information, knowledge and expertise needed to run a business profitably, the trustee can be held liable for a decline in the business. Assembling a team and delegating control are two critical steps a trustee should make to maintain and manage the assets. Be sure to keep the beneficiaries informed and in the loop regarding the state of affairs.

If you need help understanding the duties of a trustee and how to manage a business or other complex assets in a trust, we’d love to help.

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Magellan Law, PLC

10617 North Hayden Road, Suite B-100, Scottsdale, AZ 85260

Office: 602-443-4888

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A great legal team is critical to the success of your Estate Plan. The Scottsdale Estate Planning and Trust attorneys at Magellan Law will help you plan a cohesive strategy to take care of your estate now, and for future generations!

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