In earlier Blog articles we discussed the difficulty in causing the Court to throw out meritless lawsuits before trial. Procedurally, the deck is stacked against the Defense when it comes to forcing the dismissal of meritless lawsuits. A Plaintiff can survive Demurrer merely by alleging facts, even improbable "facts" of dubious veracity. Motions for Summary Judgment are easy to defeat and hard for the moving party to win as a matter of law because defeating the motion requires only a slight controversy concerning key facts. These Motions, particularly Summary Judgment motions, are expensive to bring. So the question becomes: what can best be done to force the earliest feasible and successful conclusion to a meritless, frivolous, or extremely weak lawsuit.
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.
Buffington Law Firm's civil trial attorneys are probably asked this question more than almost any other by clients who have flimsy or groundless lawsuits brought against them: "Why can't I get this frivolous lawsuit thrown out before trial?" The question is, for many cases, understandable. It is far from uncommon that a plaintiff files a lawsuit against a defendant when the lawsuit is weak on the law and even weaker on the facts. When this happens the person being sued needs an attorney and, understandably, demands action. No one wants to be entangled in a lawsuit as a defendant one second longer than necessary.
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 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.
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.