Tag Archives: probate litigation

  • 29
    Feb 16
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Why Your Trust Needs a Trust Protector

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If you follow my blogs, you know by now that our law firm not only prepares Wills and Trusts. We also do probate litigation. This means that we go to court to handle messy family feuds over inheritances. One of the most common type of lawsuit has to do with a trustee who steals money, mismanages the investments, or for various reasons needs to be removed. A basic check and balance for a trust is to have a “Trust Protector” named who can remove an irresponsible trustee and appoint a successor. In this post, I will explain why your trust needs a Trust Protector.

That fact is that life is unpredictable. You have absolutely no guarantee that the people you named as trustee in your trust will actually do what you want. I have seen this too often. Let me give just a couple of real life examples.

Example One: Husband and wife sign a trust. They say that if husband dies, husband’s father and wife will be co-trustees. (This was a good idea at the time; it was one form of check and balance.) But, what wasn’t planned for? That husband and wife would get a divorce, husband would die shortly after that, and that the husband’s father would make off with all of the trust property, leaving the wife and kids impoverished. This could have easily been avoided if a Trust Protector had been named who could easily remove husband’s father as trustee and appoint a new truste.

Example Two: As mentioned by Jay Adkisson in a Forbes article from 2012, let’s assume that in your living trust you simply make one of your heirs/beneficiaries the Trustee. “The problem here is that you can’t predict the future. Maybe by the time you die the new Trustee has developed a drug problem, or maybe the Trustee harbored a grudge against one of the other heirs/beneficiaries and now wants them to get nothing (even though you wanted them to get their share). Without a Protector, the situation is bad. But with a Protector, the new Trustee can be fired.”

If your trust does not have a Trust Protector, I encourage you to amend it to include one. Personally, I prefer to have the protector have very broad powers, but also have a fiduciary duty. Thus, they are somewhat like a trustee, except that their powers are different from the trustee’s powers. The Trust Protector’s responsibility is to provide a check and balance to the trustee. The trustee is the active manage. The Trust Protector rarely gets involved except when needed to remove a trustee, modify the trust, or make other permissible changes.

This is not to be done by lay people. See a competent estate planning attorney.

P.S., if you are wondering what’s with the coat of arms and tartan, here’s my explanation. The Deloughery Coat of Arms shows horses, which are a symbol of loyalty. Also, there is a knight’s helmet. These are all symbols of protection and loyalty. These are good traits for a Trust Protector (and for a trustee, for that matter). The tartan in the background is the official Deloughery of Scottsdale tartan, duly registered in Scotland (which is where even Irish tartans need to be registered). I see a Trust Protector as being something like a knight … always on guard to protect the family fortune if necessary.

  • 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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  • 08
    Apr 15
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Solving Disputes Involving Trusts

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Solving Disputes Involving TrustsDisputes are not uncommon during the administration of a trust. But they can grow into something devastating both financially and emotionally.

Such disputes can become so fierce they can tear a family apart. But if you know of some of the more common trust disputes and how you may prevent them, you’ll go a long way toward ensuring a relatively smooth trust-administration process.

Disputes over trusts arise rise from three basic issues:

  1. Trustee mismanagement. It is not uncommon for a trustee to make mistakes when administering a trust—these mistakes may be intentional or unintentional. A trustee has a fiduciary duty to act in the interest of the trust and the beneficiaries.
  2. Improper trust creation or amendment due to settlor capacity or undue influence. A settlor is the legal term for a person who settles property, through trust, for the benefit of beneficiaries. Settlor capacity refers to whether the settlor was of sound mind and legal age when creating the trust (which can lead to a dispute about improper trust creation). Undue influence occurs when a relative or other party manipulates the settlor to change asset distribution in a trust or will.
  3. Disagreement over how a trust was written. Sometimes a beneficiary wants or needs assets to be distributed differently from what was specified in the trust. Perhaps the trust requires that the funds be held in a trust rather than being distributed outright. A disagreement over disbursement can lead to disputes.

Depending on the nature of a trust dispute, you have a few options. One is to go to court. This might be best when the other parties involved are unwilling to compromise or work together to find a peaceful resolution. Going to court can be time-consuming and expensive, as well as emotionally draining.

Another way to resolve trust disputes is to negotiate a settlement. Negotiation requires that both parties being willing to work together to find a mutually beneficial solution.

This can be challenging in situations where emotions are running high. But in my work with trusts, I’ve applied some basic principles that help clients neutralize conflict in order to avoid a lengthy court battle:

  1. Hire an attorney upfront. This seems self-evident, but many people are afraid of what they see as the cost of an attorney. But a qualified attorney can help parties prevent a loss of funds and an escalation of tension. It may be necessary to hire a lawyer to protect your inheritance. But hiring an attorney for assistance in trust disputes can be vital to preventing further trust mismanagement or other compromises to assets. Be aware that this can change the dynamics of your relationship with the other party involved in the dispute. But you will also have someone who can act on your behalf, and spare you the emotional interchanges that might arise with others in the dispute.
  2. Realize that the person with whom you’re in conflict is also human. Even someone who may have abused trust, failed to perform his or her fiduciary duties or even has broken the law is, after all, human. This person likely feels justified in his or her position. It helps to try to have a conversation to understand the other person and resolve difficulties.
  3. Change your perspective. Consider for a moment the other person and view the situation from his or her perspective. How does that change the way you will make decisions?

At our firm, we approach settling disputes by presenting facts and letting the facts win the case. We have no interest in litigating for the sake of gamesmanship or bravado. It’s not necessary and it’s not in the best interests of our clients.

If you or your family needs assistance with resolving trust disputes or other probate issues, we’d love to help. Give us a call.

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Magellan Law, PLC

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

Office: 602-443-4888

Fax: 602-334-1311

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