Trusts are increasingly popular as a way to avoid probate court involvement in the event of incapacity (which might otherwise require conservatorship proceedings) and after death (which might otherwise require probate estate administration). For these reasons, trusts are often described as “probate avoidance” trusts or “will substitutes”.
Trusts are often properly recommended as a way to avoid probate proceedings (and much of the cost and delay probate entails). A main benefit of trusts is that, unlike wills, they are generally administered without probate court involvement. But administering a trust is far from hassle-free.
Trust administration is relatively simple when the persons who created the trust (the “trustor(s)” or “settlor(s)”) are all alive and still administering the trust (as “trustee(s)”). But upon the death or incapacity of a settlor, the duties of a remaining or successor trustee can be very complicated. These duties — under the trust and state law — are very serious: a trustee who fails to properly perform them can be held personally liable for breach of fiduciary duty.
Successor trustee duties include (but are not limited to) the following:
- Notice to Beneficiaries. If a trust becomes irrevocable in whole or in part at a settlor’s death, the decedent’s heirs and trust beneficiaries must be notified of that fact and given an opportunity to request copies of the trust.
- Accounting. Trust beneficiaries have the right to a proper accounting of the trust, although such an accounting is generally not supervised by a probate court.
- Inventory and Appraisal. An inventory and appraisal is essential for protecting and preserving trust assets, and for properly accounting for and distributing those assets.
- Creating and Administering any Sub-trusts. Many trusts must be split into certain sub-trusts upon a settlor’s death.
- Decedent Income Taxes. Personal returns must be filed for the decedent.
- Fiduciary Income Taxes. If some or all of a trust becomes irrevocable (as is usually the case with a “bypass” or “credit shelter” trust), then the successor trustee must generally file fiduciary income tax returns.
- Estate Taxes. If a taxable estate is worth more than $5.3 million (for deaths in 2014), a federal estate tax return must be filed.
Trusts are often the subject of disputes, which can result in litigation. As in the case of an heir disappointed by the terms of a will, someone disappointed by the distribution provisions of a trust may contest its validity. Beneficiaries may challenge a trustee’s conduct, on such grounds as improper management, failure to honor a trust’s terms, or failure to properly account to the beneficiaries. In addition, a successor trustee may try to remove an elder as trustee of the elder’s own trust. Litigation over a living trustor’s trust can often amount to what have been called “pre-death estate contests”, where someone close to the elder person tries to determine control of the elder’s property and the disposition of their estate.
Litigation over trusts can involve disputes over various issues, including:
- trust contests based on, e.g., lack of capacity, undue influence, fraud, duress, coercion, lack of proper formalities, or bequests to disqualified beneficiaries (including caregivers and attorneys);
- trustee incapacity, removal, and succession;
- beneficiary claims;
- accounting by trustee;
- breach of a fiduciary duty;
- misappropriation of trust property; and
- mismanagement of trust property
Trust litigation is often subject to very strict time limits, so you should contact a trust litigation attorney right away if you have a claim involving a trust.
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