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Are Your Interests Being Protected?

When considering if you need to seek counsel to either contest a trust or the handling of its affairs, you should look at a few points before making your decision:

Lack of Mental Capacity – Did the family member who executed the trust have the mental capacity to make decisions about the distribution of his or her assets? Was he or she in the hospital or taking prescription medications at the time? Did he or she have dementia or Alzheimer’s that could have affected his or her decision-making? Are there mental health issues that may have incapacitated him or her when the trust was drafted?

Fraud – Did the trustee commit fraud if he or she was involved in the drafting of the trust? Were promises made to the person in order to sign over certain assets to a beneficiary? If you suspect that there was fraud during the drafting of the trust document, you may be able to challenge the distribution of assets or have the entire trust document invalidated. This would force the courts to use the same rules as for intestate estates.

Undue Influence – Has a close relative or caregiver recently been named as the trustee and significant beneficiary of estate assets? Has this same person made it difficult to visit or communicate with your loved one before his or her death? If you suspect that a caregiver or close family member has coerced your loved one to sign documents, contact an experienced trust litigation attorney immediately to protect your rights.

Poor Drafting or Execution of Documents – If you can get a copy of the trust document as a beneficiary, it is worthwhile to have everything reviewed by a trusted attorney. There are many lawyers claiming to do estate planning who see trust documents as a major profit center for the law firm. However, they may not have followed all of the procedures for executing the documents properly. Were the documents signed with the settlor and two witnesses present with notary authentication? If not, the documents may be rendered invalid.

Improper Handling of the Trust Estate – A trust may help avoid probate, but a trustee still has a fiduciary duty to the beneficiaries. There are rules that need to be followed in order to distribute the assets in accordance with the decedent’s wishes. Is there a spousal elective share that needs to be determined properly? Is the trustee distributing assets that are not allowed or exceed a limit set in the documents? We often see this when it comes to motor vehicles. Family members that have a child with immediate transportation needs or have their own issues will contact the trustee inquiring about the title and “using” the car until the estate is settled. These mistakes may be grounds for removal of the trustee or recovery of assets from individuals.

When evaluating whether the trustee is handling the affairs properly you should ask these important questions:

  • Has the trustee made all the proper distributions in a timely manner?
  • Is the trustee making proper accountings during the proceedings?
  • Has the trustee been warned by a court to file certain documents, or face discipline?
  • Is the trustee making decisions that appear to contradict the terms of the trust?
  • Are proper decisions being made with respect to the investment of funds?
  • Is the trustee receiving compensation? Is he or she overcharging, based on the terms of the trust?
  • Does the trustee have an apparent conflict of interest when dealing with an issue of distribution?
  • Make sure the trustee is complying with all applicable tax statutes and filing appropriate returns or engaging tax counsel.

If you have questions about how your trust administration is being handled, get them answered and call Kovar Law Group for a FREE St. Petersburg Florida Trust Litigation conference. Call (727) 827-7777 today.

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