Buffington Law Firm's Trust dispute attorneys have more than two decades of experience in living trust litigation. As many people know, revocable or "living" trusts have become extremely popular in California and have to a significant degree replaced wills as the preferred means of transferring family wealth to the next generation. As most people know, trusts are designed to "avoid probate." Put simply, this means that one or more successor trustees of a trust are responsible for interpreting the trust and implementing its written instructions without supervision by a court. This contrasts with a probate of a will whereby a probate court supervises the implementation of the will.
Revocable or "Living" Trusts have become wildly popular in California as an alternate mechanism to wills for transferring a family's wealth to the next generation. Lawyers who practice estate planning often tout trusts as a simpler and cheaper way to handle an estate. However, trusts are not without problems of their own and trusts are far from a panacea. Trusts are designed so that one or more "successor-trustees" can administer the trust and carry out its provisions without the need for court involvement. In this way the trust "avoids probate" which is the main advantage of a trust as opposed to a will.
Buffington Law Firm's trust dispute attorneys have been asked to solve many problems relating to misbehaving problem successor-trustees of revocable or "living" trusts. One of the most common problems with trusts once the trustors die and a successor-trustee takes over is the way successor-trustees sometimes handle trust money. Since living trusts "avoid probate," they are ordinarily not under the supervision of the Superior Court. While avoiding probate is often touted as a benefit of living trusts, it can also lead to problems with successor-trustees and the way they handle the trust money and assets.
Buffington Law Firm's Trust and Elder Law litigation attorneys are sometimes faced with situations that deal with the issue as to whether a person has the mental capacity to make a contract or, alternatively, whether that person posesses testamentary capacity -- the ability to make a will or trust. To the layperson this may seem straightforward -- it may seem as though a person either has mental capacity or he or she does not. However, under the law, generally, the required mental capacity to make testamentary decisions is lower than the mental capacity required to make contracts.
Buffington Law Firm's California Trust Litigation attorneys have handled numerous cases involving so-called "Dynasty Trusts" as well as alternative forms of estate plans similar to these. A "Dynasty Trust" is an estate plan in which the trust does not simply distribute assets, wind up, and dissolve when the trustors pass away --the way wills usually work. Instead, the trust is set up to live on for an indefinite period after its creators die, retaining most assets of the estate in the trust, and usually paying mainly income only to the beneficiaries. This type of trust is designed to control the beneficiaries even after the trustor passes away. Perhaps the trustors believed that their children are irresponsible with money. Lawyers sometimes call this type of scheme "dead hand control" as the "dead hand of the past" is controlling the trust, its assets and income, and thereby the beneficiaries.
One of the frequent questions asked of Buffington Law Firm's trust and estate litigation attorneys is whether a successor-trustee of a revocable "living" trust can be removed by a court action. As discussed in recent Blog articles, California living trusts are designed to operate without court supervision. The notion is that after the trustors (the person or persons who created the trust, e.g. husband and wife) have passed away, one or more designated successor-trustees will have the power under the trust instrument to carry out the provisions of the written trust instrument. When this process works as the law intends it is often cost-efficient and quick, and avoids the cost of probate.
Buffington Law Firm's trust dispute attorneys have frequently assisted clients in dealing with problems involving the removal of problem successor-trustees or the need to force the dissolution of a trust. One form of trust that is particularly prone to trust disputes are so-called "Dynasty Trusts."
Buffington Law Firm's team of trust dispute litigation attorneys has decades of experience in dealing with problem situations involving California Living or "revocable" trusts. Many of the problems that we are asked to solve deal with situations in which, for some reason or another, the trust was not wound up and terminated with the assets promptly distributed to the beneficiaries.
Buffington Law Firm's Trust dispute attorneys have broad experience in dealing with cases in which a trust successor-trustee is failing to properly carry out his or her duties as trustee. As many people know, trusts are a legal device that can allow a decedent's estate to avoid probate. Essentially, a trust allows a successor-trustee to distribute the trust assets and otherwise administer the trust without the involvement of the probate courts. Probate can be an expensive and time-consuming legal process and trusts lighten the courts' workload and can lower administrative expenses by avoiding probate.
Buffington Law Firm's trust litigation team won a significant courtroom victory in a 2017 case "Orange Catholic Foundation versus Rosario Arvizu." In this case, Buffington Law Firm defended the trustee of a trust, Rosario Arvizu, against various breach of fiduciary duty claims by other beneficiaries of the trust, i.e. the Orange Catholic Foundation and the Diocese of Orange. The trial court rendered a verdict in favor of Mrs. Arvizu. The trial court found that as trustee she had been confronted with a very difficult situation, had acted in good faith, and the court had the power to exercise its discretion under Probate Code Section 16440(b) to excuse any of her errors as trustee as an exercise in equity. After the trial the Petitioners appealed to the California Court of Appeal, arguing that the trial court had abused its discretion and lacked the power under the Probate Code to excuse what it argued were violations of the trust terms by Mrs. Arvizu. Buffington Law Firm represented Mrs. Arvizu on appeal.