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Inheritance, Wills, Trusts, and Estates
Inheritance lawyers and trust fund attorneys represent clients with all types of will, inheritance and trust fund issues. An inheritance attorney or trust fund attorney can help you litigate an inheritance lawsuit and resolve issues and cases involving guardianship, estate probate, power of attorney, cases with lost wills and many other legal issues.
The law of wills and inheritance, trusts and estates generally governs the management of personal affairs and the disposition of an individual's property in anticipation of their incapacity or death.
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Wills and Trusts
Wills and Trusts protect your assets and provide for your loved ones after your death.
A Trust is a right in property (real or personal) which is held in a fiduciary relationship by one party for the benefit of another. The trustee is the one who holds title to the trust property, and the beneficiary is the person who receives the benefits of the trust.
A trust fund allows you to create a separate legal entity to protect your property and assets from probate, taxes and public scrutiny. Trust funds can be established while you are living or upon your death as set forth in your will.
Types of trusts include:
A Will is a legal document that enables you to name a guardian for your child and specify who will inherit your property after you die. If you don't have a will, you will have no control over your property upon death. An experienced Wills and Trusts lawyer can advise you in all of your estate planning requirements.
- Revocable Trusts—A revocable trust allows you to maintain ownership and control over your property. The terms of the trust may be changed by you at any time while you are still mentally competent.
- Irrevocable Trusts—With an irrevocable trust, you give up ownership and control of the property placed in the trust. Once the terms of the trust are in place, you may not change them.
- Testamentary Trusts—A testamentary trust is established after your death, through a will. An experienced estate planning attorney should be able to help you understand the differences between the various types of trusts available to you, make you aware of the tax consequences of each and assist you in selecting the best way to maximize your estate goals.
When someone dies without leaving a Will, inheritance law requires the estate must pass through probate. Each state has different probate laws but generally takes between 6 to 18 months to settle. When no Will has been filed, assets are usually transferred to the surviving spouse, children or other family members.
It is important that you make an estate plan that includes a legally binding Last Will and Testament. You might also consider setting up a revocable living trust, which is executed by a Trustee and assets are transferred to named beneficiaries upon your death. An experienced trust fund lawyer can offer this service for a nominal fee.
nheritance is the legal succession of property, titles, debts, obligations and other valuable possessions upon the death of an individual. Any restriction to inheritance is a violation of constitutional law.
According to inheritance law, every person with family responsibilities should make a will: disputes frequently occur when a family member is denied an inheritance they believe they are due under a will or trust. Although inheritance law varies from state to state, most require that an estate executor is appointed either through a Will, Living Trust or the Probate Court. The person administrating the estate is responsible for settling the decedent's debts, taxes, funeral expenses, and distribution of assets.
IInheritance disputes may include the following issues:
An inheritance, wills and trusts lawyer can help contested inheritance issues in many situations, including
- beneficiary fraud
- breach of fiduciary duty
- executor or trustee misuse of authority
- improper joint and survivorship bank account designations, or changes to other beneficiary designations on a financial account or insurance policy
- power of attorney abuse or fraud
- unusual beneficiary changes
- Breach of Fiduciary Duty involving trusts, probate matters and tax responsibilities
- Lack of Capacity - to make a will, set up a trust, or even pursue changes
- Undue influence - claims of undue influence by other family members to establish or change a will
- Improper Asset Accounting - executors of estates not doing the proper accounting for financial assets in accounts, trusts and other estate plan vehicles
- Tax Liabilities - failure by administrators and trustees to file proper amounts or on time, resulting in accrued interest and large penalties (income tax, California inheritance tax and federal estate tax)
Numerous banks act as trustees for trusts established many years ago with small banks, some of which have been acquired many times over. The successors are typically very large banks with no personal relationship with the beneficiaries of the affected trusts. Under the Uniform Trust Code, which has now been enacted into law in a number of states, it has become much easier for the beneficiaries of trusts to change trustees, typically for replacements which are local, smaller and/or which charge lower fees and expenses.
Even in those states where it is not as easy for the beneficiaries of trusts to obtain replacements under the new law, many bank trustees have engaged in practices which put their own interests before those of the beneficiaries, which they are legally obligated to do. All trustees have what are known as fiduciary duties to the beneficiaries, the most important of which is the duty of loyalty. Many banks, because of their other business interests, have conflicts of interests (between their own interests and those of the beneficiaries) and, if they put their own interests first, this fact may be used as a basis for obtaining a replacement trustee.
Many banks also control their own "families" of mutual funds. When the assets of trust accounts, estates (when the bank is acting as executor or personal representative) or other types of fiduciary accounts are "invested" in the shares of these captive mutual funds, the banks may be putting their own interests first. Many of these mutual funds are charged fees and expenses (by subsidiaries or affiliates of the banks) that are both excessive and, when taken together with the banks' direct charges for acting as a fiduciary, the total expenses of maintaining the fiduciary accounts are higher than they would be if the banks were to make investments directly.
In addition, some banks "change the rules" unilaterally by charging trust and other fiduciary accounts fees and expenses above those established when the trust/probate or similar relationships are established. Even if the beneficiaries have "consented" to these changes, they may not be binding and may also be a basis for changing fiduciaries.
When problems are encountered by beneficiaries of fiduciary accounts, it is typically difficult to obtain a lawyer to provide objective advice and/or to challenge a bank. For the most part, this is due to the fact that the banks make referrals to the lawyers who draft wills and trust documents and those lawyers are not about to "bite the hand of the one who feeds them." The lawyers, many of whom may have small practices, may well be intimidated by banks or may have no experience with litigation, which frequently involves complicated financial issues and/or they may be unwilling to represent clients on a contingent-fee basis, which is the only way to avoid the risk of enormous legal expenses.
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Updated on Sep-23-10