One of the primary purposes of a trust is to provide the organized distribution of property from one generation to the next. A trust lets you decide now which belongings you want to be given to whom. As with any other legal proceeding, there may be issues with a trust that will require trust litigation. When that happens, you need an estate planning attorney experienced in litigation to help you through this process.
Basic reasons trust litigation may be required
If it turns out that the person who created the trust may have lacked the legal capacity to do so, there may be a need for litigation to determine whether the trust is actually valid. The same is true if there are questions as to whether was coerced into creating the trust, or including certain provisions in the trust. If there was undue influence or persuasion that may have inhibited the maker’s free will, then litigation may be necessary.
Trust litigation can be complicated
Trust litigation is a specialized area of the law, much like estate planning in general. It is very common for trust litigation to require multiple petitions and complaints based on separate, but related, claims. For example, one situation may lead to petitions regarding financial elder abuse, capacity issues, undue influence claims, creditor’s claims, and probate. In order to be successful in pursuing all of these legal claims, you need an attorney with sufficient knowledge and experience of California’s probate laws.
Trust litigation requires trial lawyers who are experts at estate planning
In order to be successful at litigating the legal issues surrounding a trust, you need more than an estate planning attorney. Why? Because your attorney needs to be very familiar with what is required to take a case from inception in court through trial. Your attorney must understand the laws that govern trusts and probate, as well as the litigation procedures that must be followed in California courts.
Common types of trust litigation matters
There are a wide variety of situations in which a Trustee may find himself in court on behalf of a trust or estate. It could be that the trustee must initiate the lawsuit based on the wrongdoing or negligence of someone else. On the other hand, a trustee may be required to represent the trust or estate in defense of a claim brought against it by another party.
Common actions against trustees
Some of the most common issues involving trustees that are ultimately litigated in court include:
- Compelling Trustees or Executors to Account
- Proceeding to Surcharge Trustees or Executors
- Removal of Trustees or Executors
- Obtaining Trust or Will information
- Prohibited Transferee Care Custodians
Other common claims involving the modification or termination of trust documents include:
- Modification of Trust by Consent of the Beneficiaries
- Modification or Termination for Changed Circumstances
- Disposition of Trust Property on Termination
Claim brought by Trustees in California
A trustee is considered a fiduciary, which means they have a legal duty to protect the property included in the trust. Included in the duty to protect may be the need to bring a legal claim in court. For instance, if the person who created the trust is suspected of being the victim of financial elder abuse, it may be necessary to file a claim in court in order to have any assets that were illegally obtained returned to the trust. Another example is when a senior entered into a contract while not being legally competent to do so. In that case, the Trustee will need to defend against any creditors attempting to collect on that contract.
The duties and responsibilities of a trustee
Obviously, the trustee is an integral component of any trust. The trustee is the person who makes sure there is compliance with the terms of your trust. Clients often choose an adult relative, such as their child or a trusted friend, to serve as trustee. You can also select a financial institution or trust company to be your trustee. These entities are qualified and capable of providing trustee services. Selecting your attorney to be your trustee is also an option. With regard to providing fiduciary services, an attorney is a certainly a good option. Not only do they have specialized skill and training, but the attorney who drafted your trust would already be very intimately familiar with all of its terms.
Join us for a free seminar! If you have questions regarding trust litigation, or any other estate planning needs, please contact the Schomer Law Group either online or by calling us at (310) 337-7696.
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