Tag Archives: trust litigation

  • 0

What’s a Probate Emergency?

Tags : 

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.

Listen to the Podcast


  • 0

Trust Management: 3 Top Mistakes Trustees Make

Tags : 

Trust Management 3 Top Mistakes Trustees MakeServing as a trustee is a big responsibility that can be complicated and confusing. It’s easy to fall into trouble if you’re misinformed or careless in the trust management. Keep in mind these three pitfalls when serving as trustee:

  1. Breaching fiduciary duties. Fiduciary duty is the highest legal duty of care recognized by the U.S. legal system. The most common example of breaching duties is when a trustee uses the trust to pay for personal expenses or purchases.
  2. Failing to keep beneficiaries informed. Trustees have the duty to keep beneficiaries “reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests.” Thus, beneficiaries are entitled to periodic accountings showing investments, disbursements and expenses. If a trustee is not transparent with these actions, he or she may be subject to legal action.
  3. Breaking the law. This can involve theft – the most common way a trustee may break the law – or the failure to pay taxes.

A trustee who doesn’t act in the best interest of the trust may be subject to consequences in civil court. The most common of these – for trustees who are also beneficiaries of an estate – is a surcharge, which is a legal term under probate law for a type of lawsuit that will reduce the trustee’s portion of the inheritance to return any losses to the trust that have been incurred because of mismanagement by the trustee. A trustee can also be personally liable for losses resulting from mismanaging assets in the trust.

If you’re concerned that a trustee is mismanaging your loved one’s trust, it’s important to seek help  immediately from an experienced probate attorney.

Many people want to avoid going to court to resolve their probate issues, but probate court exists to help families sort through the process of settling an estate. In fact, probate court can be particularly beneficial when a trustee is either a family member or a friend, because emotions and stress can complicate these situations.

If you’re a trustee and feel over your head in fulfilling your duties, attorneys can help you avoid pitfalls. You don’t have to do it alone. Consider hiring an attorney, bookkeeper, accountant or even a corporate trustee to work with you. A little bit of help can prevent not only mistakes but undue stress during an already-stressful time.

Listen to the Podcast


Contact Form

Fields marked with an * are required