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Trust Litigation is Increasingly Common as Families Move from Wills to Trusts

On Behalf of | Nov 18, 2018 | Firm News

Buffington Law Firm’s Trust Litigation attorneys have been serving Southern California’s trust litigation legal market since 1998.  Until perhaps 15 years or so ago, most families conveyed the inheritance by way of a will, i.e. “Last Will and Testament.”  Wills require probates, and the California courts were well set up to handle the probate of wills.  In a probate, the actions of the will executor are essentially supervised by the Probate Courts.

Over the past several decades there has been a shift in estate planning in California and most other states from the use of wills to the use of living trusts, also known as “revocable” trusts, as the primary means to bequeath an estate to the next generation.  The result of this has been a huge decrease in the number of probated wills, which is a good thing, given that the courts are over-burdened and under-funded in California and many other states.  Public policy has regarded a reduction in court-supervised will probates to be a desireable outcome.

Unfortunately, this change has come at a cost.  Trust distributions and administrations are handled by the successor-trustee (or trustees) of a trust.  Typically, although by no means always, the successor-trustee is a family member; often one of the beneficiaries of the trust.  Usually these successor-trustees have no legal training and have a misunderstanding as to their roles and duties.  Often these successor-trustees can help themselves and the trust beneficiaries by retaining legal counsel.  Unfortunately, the lawyers advising successor-trustees sometimes regardthemselves as an advocate for the successor-trustee, and that person’s objectives, rather than as a more objective advisor.  Technically this is correct — a lawyer is required by the Professional Rules of Conduct to advocate for his or her client.  But when this happens, you often have a situation where the trustee is acting questionably and unfairly towards the other trust beneficiaries with the power of the trust and legal counsel behind him or her.  This is a significant disadvantage for the other beneficiaries.  Sometimes the trustee seeks to take excessive trustee fees.  Other times the trustee refuses to account for the trust assets or claims that certain trust assets belong to the trustee rather than the trust.  Often beneficiaries will know that these contentions by the trustee are unreasonable but they are confronted by the trustee’s attorney who plainly is siding with his or her client — the successor-trustee.  This situation puts the other trust beneficiaries at a very significant disadvantage.

If beneficiaries find themselves in this position, and it happens increasingly often, they need legal counsel of their own.  A misbehaving trustee can interfere with the legitimate inheritances of the other trust beneficiaries.  If you are in this position, confronted with an unreasonable “lawyered-up” trustee, you need legal counsel.  Buffington Law Firm’s trust litigation attorneys have decades of experience in handling these issues in a strong and cost-effective way.  We invite you to call us for a free legal consultation in which you will speak directly with one of our senior trust litigation attorneys.  All consultations are completely confidential and there is no obligation.