Navigating the world of trusts and estate planning can be complex, and disagreements with a trust attorney sometimes arise. It’s crucial to understand your options if you believe your attorney has acted improperly or made errors that have harmed your estate plan or its implementation. While a direct “appeal” isn’t typically available in the same way as with court cases, several avenues exist to address concerns and seek redress. It’s important to note that California, like many states, does not have a state estate or inheritance tax, but proper planning is still vital to avoid unnecessary complications and costs, especially with probate procedures.
What are my options if I disagree with my trust attorney?
First, open communication is key. Schedule a meeting with your attorney to discuss your concerns directly. Often, misunderstandings can be resolved through clear explanation and clarification. If that doesn’t work, several formal paths are available. One option is mediation, where a neutral third party helps facilitate a conversation and find a mutually agreeable solution. This is often less expensive and time-consuming than litigation. Another is filing a complaint with the State Bar of California. The State Bar investigates claims of attorney misconduct, which can range from negligence to ethical violations. Formal probate is required for estates over $184,500, and the statutory fees for executors and attorneys can quickly add up, making it vital to choose a competent and ethical attorney from the start. Remember, all assets acquired during a marriage are considered community property, owned 50/50, and this has significant tax implications – a surviving spouse benefits from a “double step-up” in basis, potentially reducing capital gains taxes on inherited assets.
Can I sue my trust attorney for malpractice?
Yes, you can pursue a legal malpractice claim against your attorney if you believe they breached their duty of care and caused you financial harm. This requires proving several elements: the attorney owed you a duty of care, they breached that duty, and their breach caused you damages. For example, if an attorney failed to properly fund a trust, resulting in assets remaining subject to probate, that could be grounds for a malpractice claim. Or, if they failed to advise you about potential tax consequences, leading to a significant tax liability, that could also be actionable. However, these cases can be complex and require expert testimony to establish the standard of care and prove causation. Consider the case of Arthur, a retired teacher who meticulously planned his estate with the help of an attorney, creating a trust to benefit his grandchildren. Unfortunately, the attorney failed to properly update the trust documents after a change in tax laws, resulting in unexpected estate taxes. The oversight created a significant financial burden for his family, who felt betrayed by the attorney’s negligence.
What if I believe the attorney is violating the terms of the trust?
If you believe the trustee – which could be your attorney – is mismanaging trust assets or violating the terms of the trust document, you have several options. You can send a written demand to the trustee, outlining your concerns and requesting corrective action. If that doesn’t resolve the issue, you can petition the court for an accounting, an inventory of the trust assets and a review of the trustee’s actions. The court can order the trustee to correct any wrongdoing or even remove them from their position. The California Prudent Investor Act guides trustees in managing investments, requiring them to act with reasonable care, skill, and caution. This is similar to what happened to Evelyn, a woman whose brother had been named trustee of her mother’s trust. He began making risky investments with the trust assets, disregarding her concerns and acting without transparency. After multiple failed attempts to communicate with him, Evelyn filed a petition with the court, seeking an accounting and ultimately, his removal as trustee.
What about no-contest clauses and challenging a will or trust?
Many wills and trusts contain “no-contest” clauses, which attempt to discourage beneficiaries from challenging the document. However, these clauses are narrowly enforced in California. They only apply if a beneficiary files a direct contest without “probable cause.” This means that if you have a valid reason to believe the will or trust is invalid – such as fraud, undue influence, or lack of capacity – you can challenge it without risking the forfeiture of your inheritance. It is also important to remember that if there is no will, California’s intestate succession laws will determine how assets are distributed. In such cases, the surviving spouse automatically inherits all community property, while separate property is divided between the spouse and other relatives according to a set formula. An estate plan must also grant explicit authority for a fiduciary to access and manage digital assets – email, social media accounts, and other online accounts. This ensures that these assets are properly handled and protected after your passing.
765 N Main St #124, Corona, CA 92878Steven F. Bliss ESQ. (951) 582-3800