Category Archives: Trustee Mismanagement

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Trustee sister telling brother that she doesn't want to sell the house

Trustee Doesn’t Want to Sell the House

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We get this a lot: Mom or dad just died. House was in a trust. Now your brother or sister is in charge of the trust (as the trustee). The trustee doesn’t want to sell the house or distribute anything. What are you (the beneficiary) supposed to do? Here’s a checklist.

  1. Do you have a copy of the trust? (I’m not talking about a Certificate of Trust, or a deed to the house. I mean the actual 25 pages or more long trust document.) If you don’t have a copy of the trust, ask for one. If the trustee refuses to give you a copy of the trust, contact an attorney to figure out how to get a copy.
  2. Have a trust litigation attorney read the trust document and determine what is supposed to happen.
  3. Assuming the trust says the house gets sold and you are entitled to a share of trust property, how long has it been? What is in the house? If you have valuable antiques or artwork or collectibles, are those getting inventoried?  Is the house secured? A trust attorney can help you with these details and figure out what specifically needs to happen. In a very simple case, if there is nothing of value in the house, the contents can be quickly liquidated (or donated), the house cleaned up, and the house listed for sale within a month or two. Sometimes, however, it can take longer. It shouldn’t take 6 months in most cases to clean out a house and list it for sale. One year is too long (in most cases).
  4. Figure out if there’s a “No Contest Clause” in the trust. These can be danger, as discussed in a prior blog. You may need to take certain precautions before filing something with the court.
  5. Discuss the next steps with your lawyer. If there is a No Contest Clause, he or she might file a Petition for Declaratory Judgment to get the court to determine that you won’t be “contesting the trust” by seeking to get a new trustee. There are basically two options. First, you can try to get the court to order the trustee to do what is needed. However, sometimes it’s just quicker in the long run to get a more responsible person appointed as trustee. If you decide that’s the way to go, have your trust litigation lawyer prepare and file a Petition to Remove Trustee and Appoint Successor Trustee.

If the trustee is also living in the house, your lawyer will help you file an eviction (called an Unlawful Detainer). This takes longer than you might like. But generally, you can get the person removed within 45 to 60 days.

If you have any questions, call us for a free consultation. We’re here to help!

 

 


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Photo of 6 year old Dachsund Winnie Pooh dreaming of money

When does it make sense to have a pet trust?

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According to DNAinfo.com, there is a court battle over a $100,000 pet trust created for a 6 year old Dachshund in her deceased owner’s Will. Supposedly, the owner, Patricia Bowers, passed away in 2010 (apparently when the pet was but a wee pup). The dachshund, named Winnie Pooh, was left to caretaker Virginia Hanlon. Ms. Hanlon filed court papers in Manhattan last week, alleging that the executor of Winnie Pooh’s deceased owners estate is improperly withholding funds from the doggie’s trust. The trustee has occasionally sent payments of $2.36 per quarter (apparently estimating the cost of caring for a pet to be $10 per year).  Last year when Winnie Pooh had a $6,000 surgery, the reimbursement check from the trustee bounced. So … when does it make sense to have a pet trust?

Many questions surface from this strange story.

  • Why would you name a dog after a cartoon bear?
  • What is the trustee doing with the money? If $100,000 is held in a pet trust, then there should be absolutely no reason that a check would bounce–unless the trustee is completely mishandling the money. If that’s the case, the trustee needs to get removed by the court and ordered to pay the caretaker’s legal fees and costs.
  • The caretaker says that it would take $5,000 per year to take care of Winnie Pooh. I understand when there is a $6,000 vet bill. But how often does that happen?
  • According to peteducation.com, the high end estimate of owning a dog for 14 years would be $39,000. What else was the caretaker planning to do for the dog? Go on trips to Europe?

Final Thoughts.

Looking at the big picture, whether Winnie Pooh gets $5,000 per year, or a little more or less, her story is actually kind of within reason. You recall Leona Helmsley leaving $12 million to her beloved maltese, Trouble, among many other pets. That is actually absurd. So is when Gunther IV inherited his $375 million fortune from his father, Gunther III, the beloved pet of Countess Karlotta Libenstein. (This was actually the first time I had heard of a pet dynasty. I guess it’s technically possible.)

To conclude, I’m in favor of leaving a reasonable amount of money in a pet trust. That’s only fair to the person to whom you leave your pet. However, if you want to leave millions of dollars to your pet(s), you might just do some more soul searching and see if perhaps your money could better help the world.


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An elderly person such as this is more susceptible to financial exploitation from inheritance impatience because she is loney, depressed, and lacks the ability to protect herself.

Inheritance Impatience

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Recently, I came across some news articles discussing the term “Inheritance Impatience.” I had never heard this term before. Inheritance Impatience is a form of financial exploitation of the elderly. An example would when when an adult child pressures mom or dad to get their inheritance now (rather than waiting for the parent to die). Sometimes the adult child actually helps speed up the parent’s death (by withholding food or medical care). Now that I have a label it, I realize that we actually see this sort of thing happening too often.

The problem is this: The parents are at such an age that their children start thinking about what they will inherit. In fact, sometimes they get so excited that they start making plans far ahead of actually receiving the money. And too often I witness kids who decide that they can take matters into their own hands. These cases can be from mild to extreme as you might imagine but more frightening are the more subtle ways of expediting the transition from this life. Family members have commenced upon their own selfish acts such as withholding food and medical care, or choosing a nursing home that is known to provide sub-par care with discounted rates.

How can you prevent this happening to your own parent?

  • Make sure your parents have a revocable trust that becomes irrevocable when one of them passes away or becomes incapacitated. That prevents the surviving spouse from being pressured into making changes by an unscrupulous family member or caretaker.
  • Make sure the trust has a strong Trust Protector who can quickly remove and replace a trustee in case an impatient family member gets appointed as trustee.
  • Name a neutral third party as trustee when the parent can no longer effectively protect himself or herself. (In Arizona we call these companies licensed fiduciaries.)
  • Make sure to visit your parents regularly, or have someone who you trust that would be able to check in on your parents’ well being. Don’t just rely on the one family member or caretaker who happens to live close to your parents.
  • Make sure that all adult children have copies of estate planning documents. If there is a pattern of sharing all estate planning documents, then it looks more like undue influence if a set of documents if kept a secret from the rest of the family. (And undue influence can be a way of getting a court to invalidate legal documents.)

Just by being aware of this issue, you can be on the lookout for signs of financial exploitation or “inheritance impatience.” If you believe a vulnerable adult is being financially exploited or physically abused, call Adult Protective Services. They will investigate and take action as appropriate.


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Recovering from Trustee Misconduct

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Recovering from Trustee MisconductBeneficiaries of a trust depend greatly on the trustee to act in the best interest of the beneficiaries and the trust.

Unfortunately, trustees don’t always live up to the duty and responsibility of their position. Beyond creating headaches for family members and other beneficiaries, such misconduct can rob them of their inheritance.

In previous posts we covered the actions that can led to the removal of a trustee [link to post on what qualifies trustee for removal] and how to petition the court to remove the trustee and appoint a successor.

After those important steps, how do you go get back the stolen or misused money? It all depends on whether you are able to trace where the money was sent, if it was spent or if it still exists in some form. Let’s look at an example:

If a trustee used money from the trust to buy a new house, and if that house has not been sold or transferred to someone else, you can get a court order to freeze the property and eventually have it transferred back to the trust.

If the money is gone, there are three ways to recover funds:

  1. Surcharge. This applies if the trustee is also a beneficiary of the trust. In this situation, the former trustee’s inheritance from the estate can be reduced by the amount of any judgment the court passes against him or her. To have a surcharge ordered on a former trustee, you must file what’s known as a “Petition for Surcharge” with the probate court.
  2. Seize assets. If you’re able to trace the trustee’s spending to existing assets (cars, jewelry or other property), or if you’re able to show bank statements showing cash the trustee’s withdrawals from estate funds at ATM machines, the court can place a judgment against the trustee, making it more likely that you will get the money back. If the trustee has spent money on intangible purchases such as vacations, it will be much harder to get the money back.
  3. Personal refund. If the trustee has other personal assets (such as a house or bank accounts), the court can order the former trustee to turn over those assets to compensate for the value taken from the trust.

The process of getting the money returned can be lengthy. It can take from three to six months or more to settle a case recovering losses. The court process involves gathering evidence, and filing a petition with the probate court (this is all part of the steps necessary to remove a trustee).

After the court determines the amount of damages caused by the former trustee, the new trustee or other beneficiaries can then request the court to make further orders. To give an example, let’s say that a former trustee, Roger, owned a house, which used to be owned by the trust. After Roger has been removed from the position of trustee, the court can order that the house belong again to the trust. An attorney for the trust can then get a certified copy of the order and record the ownership of the property with the county recorder in the county where the property is located.

If you’re dealing with a trustee who is mishandling a trust, don’t wait to seek help. An experienced probate litigation attorney can walk you through the tricky and complicated petitioning process. It’s important to have someone knowledgeable on your side who knows the law and the court system.

Your attorney should work closely with you and the court to help you recover lost funds that are justly yours. The probate courts are there to help you and your family. Remember to act quickly and seek the assistance of an attorney. This will increase the likelihood that you will recover your inheritance.

Have any questions about recovering from trustee misconduct? Give us a call. We’d love to help.

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How to Petition to Remove a Trustee

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How to Petition to Remove a TrusteeLGIn a previous post, we covered the things trustees do that can lead to their being removed from that position. After you’ve identified where a trustee has abused this position of trust, and as you seek to have the offending trustee removed, the next step is to petition the court for that removal, and to appoint a successor.

It’s important that you work with an experienced probate litigation attorney on the petition process. This area of law is complex (even for lawyers). If you are unfamiliar with probate litigation, you risk increased delays and costs if things aren’t filed or presented correctly.

A trustee can be removed either by the terms of the trust or by court order. If you need to remove a trustee, the first thing is to contact a probate and trust litigation attorney who can help you put together a plan for removing the trustee.

If the trustee can’t be removed under the terms of the trust, then this will have to be done by going to court. The petition to the court should include specific details explaining why the trustee should be removed. If possible, include evidence to support your case (usually documentation such as copies of checks made out to the trustee or other evidence of the misuse of the trust’s funds or assets).

Your attorney will review the case to determine if your situation qualifies as an emergency (this can speed up the process in cases where the trustee is spending money or otherwise reducing the value of the trust).

Here’s an example of one such emergency case:

One family had a large amount of gold bullion owned by the trust. The bullion was kept in a safe in the home of the family member who was managing the trust.  Other family members noticed that the trustee had bought several new cars and expensive jewelry for his wife. The family suspected the trustee of using the bullion to fund these extravagant personal purchases.

After reviewing the case and gathering evidence that showed exactly those things, I helped the family petition for emergency status to remove the trustee. We were able to get an immediate court order freezing the assets and requiring that the remaining gold bullion be transferred to a secure storage facility.

Although you need to gather evidence of wrongdoing once you notice something wrong, the funds may not be returned. It is extremely difficult to recover money once it’s been spent. Waiting and hoping things work out rarely works out well. It’s better to take immediate action if you think a trustee is acting improperly.

Don’t be afraid to consult an attorney. Look for one who will work to protect the value of the trust while exploring ways to resolve disputes.

If you have any questions about removing a trustee or need help protecting your inheritance from an ineffective trustee, comment below or contact our office.

We’d love to help.

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How to Remove a Trustee

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How to Remove a TrusteeNot everyone works out. And you have the right, as a beneficiary of a trust, to petition to remove the trustee of the estate if he or she proves to be incompetent, hostile, dishonest or otherwise unable to fulfill the responsibilities of administering the trust.

Here’s a quick definition of a trustee and a summary of the duties of the position.

A trustee can be a person (or a trust company) who has legal title to property, who holds that property for the benefit of another and who has assumed a legal duty (also called a fiduciary duty) to act in the best interests of the beneficiaries of the trust. As you can imagine, things can go awry.

Here’s an all too-frequent scenario from a recent case:

In a case involving a prominent Phoenix family that operated multiple businesses owned by their trust, the father had passed away a number of years earlier. The mother continued running the businesses, gradually turning over control to her adult children. One of the sons took control of the trust after the mother developed dementia.

The son used the money from the trust to enhance properties he would ultimately inherit. He also bought himself a new car and started taking lavish cruises and vacations.

My clients – the siblings of this trustee – turned to me for help. First they obtained evidence of wrongdoing. In this case, they were able to get copies of checks written from the trust directly to the trustee. This gave us enough to petition the court and get the son removed as trustee and replaced with a private fiduciary.

Trusts can be set up to allow for safeguards in case of wrongdoing. That is, they contain trigger points that can lead to the removal of a trustee.

For trusts that don’t specify a mechanism to remove a trustee, the court recognizes other reasons. Here are three:

  1. If the trustee has committed a breach of the fiduciary duties of care over the assets or loyalty to the beneficiaries. Examples include failing to pay taxes, stealing assets, and not following the specifications of the trust.
  2. If the trustee is unfit, unwilling or persistently fails to act in the best interest of the beneficiaries and the trust, the court can remove the trustee.
  3. In come cases, the circumstances surrounding the trust can change significantly or all qualified beneficiaries can request the removal of the trustee. The court can review the case and remove the trustee if it deems this for the best interest of the beneficiaries, as long as this isn’t inconsistent with the original specifications and intent of the trust.

If you are the beneficiary of a trust, it’s important to know what to do if the assets are being mismanaged. Trusts are normally very private affairs. In addition, trusts, being civil matters, are outside the jurisdiction of the police. There’s typically no court supervision and no government regulation to make sure that the trust is being run properly. It’s up to you and your attorney to pay attention to how a trust is being managed.

You need to take immediate action if you believe money is being misused. Proactive action increases your ability to protect your inheritance. Contact an experienced probate attorney at the first indication that a trustee is unethical or irresponsible with trust assets.

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How to Petition for Emergency Conservatorship

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How to Petition for Emergency ConservatorshipAs loved ones age they may need help managing their finances or legal matters.

A durable general power of attorney can be a great tool for helping older loved ones when they get to the point that they need help. Simply put, it’s the written authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter. A durable general power of attorney is good in many situations, such as selling a car or home. The durable general power of attorney can give others the legal rights to perform or assist with any legal acts that the person covered under this power of attorney would do for him or herself.

In certain situations, however, a general power of attorney either is not available or is perhaps insufficient to the situation. In those cases, you may need to obtain a conservatorship.

First, let me define conservatorship for you. A conservatorship is a court proceeding that appoints a person or entity (such as a private fiduciary – a fiduciary is a legal or ethical relationship between two or more parties.). This person or entity will have the authority to manage the affairs of a minor or of an incapacitated adult who is unable to manage his or her property or financial matters.

Let’s look at a few situations where a power of attorney may have limited usefulness:

  • The person listed as the agent on the power of attorney turns out to be dishonest; this person may be stealing money or otherwise mismanaging assets.
  • The person listed as the agent may be unavailable to fulfill the role of power of attorney.
  • The power of attorney is somehow invalid.
  • The family is fighting over who should control the assets.

If a conservatorship is needed urgently for the above or other reasons, you can petition the courts for an emergency conservatorship.

You may have an emergency situation if your loved one’s bills are not getting paid, if your loved one is making poor financial decisions or if someone is stealing money or taking advantage of your loved one’s financial situation.

A hearing will be scheduled either within a few weeks or within a few days, depending on whether you can prove that there is an emergency.

If you are seeking to remove a current conservator who is either abusing power or mishandling assets, you must provide evidence of this to the court. A probate or litigation attorney can help you get the evidence you need to establish your case.

If you’re unable to provide evidence to prove that the situation is an emergency, the court will schedule your hearing as it fits into its schedule, which may take several weeks.

If the court hearing needs to be made immediately, then the court will treat it as an emergency and appoint someone without giving the other interested parties an opportunity to appear.  A follow-up hearing will then be scheduled to ensure that everyone involved is given due-process rights and allowed to contest the conservatorship if it’s felt to be necessary.

Probate courts are familiar with emergency situations. They are there to help. Remember that you have options. With the assistance of an experienced probate attorney and the probate courts, you can get help resolving the situation.

If you have questions about an emergency conservatorship, give us a call. We’re here to help.

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How to Handle Estate Emergencies After a Loved One Passes Away

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How to Handle Estate Emergencies After a Loved One Passes AwayDealing with the death of a loved one is always difficult. But death isn’t always the hardest part for the survivors. Many family members are surprised by the challenges and conflicts that arise after the funeral when the family works to settle the estate. If you find that you cannot resolve a conflict regarding your loved one’s estate, you may need to seek assistance from an experienced probate attorney.

I’ve worked with many families in which bickering siblings made emotionally charged and hasty decisions when they distributed the personal property of a deceased parent. It often ended in chaos. Often, I’ve found that executors or trustees grossly mismanage bank accounts and other assets, and consequently deprive remaining family members of their portions of their parent’s legacy.

Naturally, everyone wants the administration of a deceased person’s property and money to be orderly and methodical. But if it isn’t, and if you feel the situation is on the verge falling apart or has already deteriorated into an estate emergency – through misunderstandings or power struggles or other complicated interpersonal relationships – you have two legal options:

  1. Get a personal representative or executor appointed by the court (if one hasn’t already been appointed), or
  2. Petition for an immediate protective order from the court (if the appointed representative or executor is mismanaging the estate).

The biggest mistake I see families make when they try to resolve arguments about distributing their deceased loved one’s belongings and property is to take the law into their own hands. It’s vitally important that you go through proper legal channels to handle an estate. This avoids later flare-ups and also ensures an orderly distribution of assets and legacies. Take these essential steps:

  1. Secure the estate’s property until an executor or personal representative is appointed. If necessary, enlist the help of a third-party fiduciary to do this by being appointed as a Special Administrator. (The police will not intervene in family-estate issues.)
  2. File for an immediate protective order from the court with the assistance of an experienced probate attorney.
  3. Have a representative or executor appointed to manage the estate.

With a qualified representative or executor is in place an estate can be settled according to the will or trust that a loved one has left in place. Without quick action and the help from a special administrator, you risk a delay in probate proceedings and the disappearance of personal property.

If, after your loved one has died, you find that his or her estate is not being administered fairly or methodically, you may have an emergency on your hands. Be prepared to take immediate action if you suspect foul play or mismanagement of personal property in these instances. Talk to a probate lawyer right away.

Delayed action may leave you with no inheritance and no recourse. Working with an experienced estate attorney will not bring your loved one back, but it will ease your mind knowing that your late loved one’s wishes will be carried out.

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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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Resolving Disputes Involving Guardianships and Conservatorships

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Resolving Disputes Involving Guardianships and ConservatorshipsDisputes involving guardianships and conservatorships can be confusing and overwhelming for most people. The single biggest mistake I see in this area is people not consulting a probate litigation attorney. An experienced attorney will not only be familiar with the applicable statutes and case law, but will also know the applicable probate rules. Here is what you need to know about resolving disputes involving guardianships and conservatorships.

Guardianships and conservatorships is one of those areas of law that the uninitiated simply cannot tackle alone. People serving as guardians or conservators find themselves in a position where they are expected to be an expert on a complex topic they likely know little about. This is fertile ground for anger, surprises, greed and revenge among heirs and family members. While some guardianship and conservatorship matters are settled peacefully and amicably among family members and heirs, many times the actions by the guardian or conservator can engender disputes and bad feelings.

I recently worked with a prominent family in the Phoenix area to help the adult children resolve a dispute about their mother’s money. It turned out that one sister who had been named trustee and financial (general) power of attorney was mismanaging funds. To rectify this, I helped the other siblings file for conservatorship. We were able to obtain copies of all the financial documents and track all the funds that had been held in the mother’s trust and LLC.

After examining the financial documents, we could then force the sister who had been serving as trustee and financial power of attorney to pay back the money she’d stolen from the trust and business. We then replaced her with a professional trustee. (My clients became co-conservators.) We resolved this dispute in a cost-effective and family-oriented manner while maintaining the family’s privacy, thus avoiding public drama that would have tarnished the family name and reputation.

Conservators and guardians make important decisions on behalf of a loved one. But if the conservator or guardian is not living up to the responsibilities of the position you do have options. A probate litigation attorney can help you assess your unique situation and give you direction.

If you are an heir or if you’re serving as a guardian or conservator and you’ve found yourself in a dispute, don’t wait and hope the problem will go away on its own. Enlist the help of a probate litigation attorney right away.

In our next post we will look at solving disputes that involve trusts. If you have questions about guardianships and conservatorships, or other probate issues, please comment below or contact our office.

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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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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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Pitfalls of Estate Planning: When Assets Are Used for Personal Benefit

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When Assets Are Used for Personal BenefitA trustee must never use the assets of a trust for personal benefit (unless this is specifically permitted by the trust). There’s really no wiggle room here. Trustees are held to the highest legal standards.

If you’re serving as a trustee, conservator or guardian, it’s important to clearly understand the duties of your position to be certain that you are performing your duties correctly and to protect yourself and reduce your liability in case of error.

Most cases where assets are mismanaged involve trusts. This is because trusts are normally unsupervised. As a result, it’s not uncommon for a trustee to neglect providing beneficiaries with annual accountings or to keep detailed bookkeeping records. Laws vary by states, but in Arizona, current law requires that a trustee give annual accountings and provide beneficiaries sufficient information to protect their interests.

Some trustees, unfortunately, take the breach of duty further and use an estate’s funds for their personal use. Taking family vacations, buying cars or paying off a personal mortgage are all examples where a trustee has breached fiduciary duty by misusing trust assets.

Here are the three biggest mistakes trustees make when managing trust assets:

  1. Failing to keep records.
  2. Taking unauthorized personal “loans” from the trust.
  3. Using assets for personal use – and thinking they won’t get caught.

A trustee who mismanages trust assets—whether intentional or unintentional—can face severe legal consequences. But you should know that if you’re serving as a trustee and don’t understand your responsibilities and duties, you don’t have to do it alone. An attorney with experience in trust management can help you avoid making costly mistakes and ensure that you’re aware of your responsibilities.

From the other side, if you’re a beneficiary and you suspect the trustee is mismanaging assets, don’t wait to take action. Seek legal counsel from a skilled probate attorney.

Settling an estate is a complex process. Probate court offers resources and recourse for those who are working to settle a loved one’s estate. We’d love to help make this process easier for you and your family. Give us a call with any questions about how you can properly manage a trust, and what you can do when trust assets are being mismanaged.

In the next post, we’ll look at how to deal with estate conflict in probate disputes.

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