Setting up a trust is a great way to control distributions of your assets after your death and to avoid probate. Perhaps you’ve been asked to be a trustee, or you suspect that the trustee in charge of your own trust is breaching their fiduciary duty. Having a trust administration and litigation attorney on call will enable you to seek professional help for all your trust-related needs.
At James Bart Leonardi, LLC, our clients often have questions about trust administration and trust litigation. Here are some of the most commonly asked questions:
A trust is a legal document that names a beneficiary (the person(s) receiving the assets) and a trustee (the person who controls the assets and distribution until certain terms have been met). Assets are held in trust during your lifetime, then transferred to the beneficiary upon your death.
Many people choose trusts because it helps to avoid probate. It’s also a way to spread out payments of distributions to young beneficiaries rather than them receiving one lump sum. Additionally, they are more private and not usually filed in the probate court like a will is.
There are several types of trusts, all with advantages and disadvantages. If you’d like to set up a trust, contact James Bart Leonardi, LLC a certified estate planning law firm. An experienced lawyer can help you minimize taxes, preserve your assets and take the burden of probate off of your loved ones.
No. A trust is a voluntary estate planning option, and may not be appropriate for every estate.
Any type of asset may be held in trust, including cash, real estate, life insurance policies, securities and more. If you’re unsure as to whether an asset would be appropriate to include in a trust, or if another type of estate planning strategy would be better, talk to us.
A living trust becomes effective during the lifetime of the person who created the trust. The creator of the trust can alter or revoke the living trust during his lifetime. A living trust will generally eliminate the need for conservatorship and the trust assets generally pass outside of probate proceedings. This is because the living trust usually contains instructions for managing trust assets during the creator's lifetime and instructions for distributing trust assets upon the creator's incapacity or after his or her death.
A trustee is the person designated in trust document by the creator of the trust (settlor) to carry out the terms of the trust..
A successor trustee is a person nominated to take over the trustee role, should the original trustee refuse be unwilling or unable to serve.
A trustee has several important legal duties:
Accepting the responsibility of trustee is a serious matter. Not everyone has the time, skill or inclination to administer a trust properly—and you could be personally liable if something goes wrong. A trustee often hires legal counsel to advise them as to their obligations and duties and those fees are usually paid as a trust expense.
Similarly, when choosing a trustee, select someone who is organized and trustworthy, as this person will be the legal owner of trust assets until they are distributed.
Trusts can be contested, just like wills. An interested party may contest a trust on the basis of undue influence, mental incapacity, or failure to comply with legal and procedural formalities or other reasons.
If someone contests a trust, they have to file a claim to request any contested parts of the trust are stricken. The burden of proof is on the contesting party to show that the trust is invalid due to one or more legal miscues.
When you’re involved in a contested trust action, it’s best to work with an experienced probate litigation attorney.
If both the trustee and successor trustee die, and there are no other named “backups” in the trust documents, the probate court will appoint someone else to oversee the trust.
Trustees have fiduciary duties to the beneficiaries. If you suspect a trustee has breached their fiduciary duty, contact Bart Leonardi immediately. Breaches may include self-dealing, failing to keep trustees informed about trust management, failing to file taxes, not distributing assets as required, and more.
When you have trust administration and litigation questions, James Bart Leonardi, LLC can offer comprehensive guidance and proven results.