Trusts are often sold to seniors as a device allowing them to pass their property to their children and other loved ones with the least possible expense, time and hassle. That may be true where there are no complications and everyone in the family gets along.
Trusts, at least theoretically, reduce the expense, time and inconvenience of settling your affairs after you’ve passed away because they typically avoid probate.
“Probate” refers to the process to administer a deceased person’s property. Probate starts with (A) the acceptance of a will as the governing instrument for how the assets should be distributed or a declaration that the person died without a will (called an intestate estate); and (B) the appointment of a personal representative. There are very specific and sometimes complex rules that apply in probate cases, so many people want to avoid probate like a disease and take elaborate steps to keep their property out of court.
If designed and funded correctly, a trust will avoid probate. But trusts are subject to the probate court’s authority if there’s a dispute or other problem. For instance, if you’re the beneficiary of a trust and you believe that the trustee is misusing or stealing funds from the trust, you may have a claim against the trustee in probate court. Those claims may include breach of fiduciary duty or misappropriation of trust assets. Or, if the trustee is making deals with the trust, giving him/herself sweetheart deals on trust property, or otherwise personally benefitting from the trust property in an improper way, you may have a conflict of interest claim against the trustee.
There may also be the claim that the person who created the trust, called the grantor, trustmaker or settlor, wasn’t competent to create the trust. In order to form a trust, the grantor must have the requisite level of mental capacity. Elderly individuals with advanced dementia or Alzheimer’s sometimes don’t have the capacity to create a trust, and if they do, their loved ones may be able to have the creation of that trust or an amendment to the trust invalidated by the court.
There’s also the problem of family members influencing a vulnerable elderly person and convincing them to change beneficiaries or divert more of the trust funds to themselves. If the grantor made decisions regarding the trust due to the undue influence or fraud of someone else, a court could reverse those decisions.
Another problem that frequently arises for the beneficiaries of a trust is a problem trustee. Beneficiaries can petition the court to remove a trustee if the trustee is not doing his/her job correctly or is violating the law. But depending upon the trust document, beneficiaries may even be able to remove a trustee without cause.
Scottsdale trust elder litigation is a sometimes very complex area of law that requires an experienced attorney. If you are the beneficiary of a trust and believe that your rights are being violated by the trustee, if you believe that an elderly loved one is being manipulated or taken advantage of through a trust, or you are a trustee that needs assistance in dealing with claims of misconduct or challenges to the trust or an amendment, call our office for a consultation with one of our trust and elder litigation attorneys.