Estate and Trust Litigation

Unfortunately I have been given another reminder of how important it is to select appropriate executors for your Will, trustees for your trusts and agents in your financial powers of attorney.

No matter how good an attorney does in drafting your estate planning documents, if there is a person in charge of the money who is not honorable, a large portion can be easily stolen. The person who you put in control of such money is known as a fiduciary.

When you name someone as a fiduciary, you must realize that while they are legally forbidden from taken this money for their own personal benefit, mechanically it is very easy to do. For this reason I always recommend that when deciding on who should be in charge of your finances you always choose someone who is trustworthy rather than someone who is good with money. A trustworthy person can always hire others to help who are good with money. You would be hard pressed to discover the money from someone who is smart and sneaky.

For people who want to do everything they can to avoid probate - just realize that by avoiding probate you are also avoiding oversight. So if you have named a bad trustee, it will just be that much harder to prove that they in fact stole the money.

If your heirs find themselves in a situation where they think that money has been stolen from an estate or trust, the first remedy is an accounting. Unfortunately there is very little satisfaction in this because it can take years and can be very costly. It is not uncommon for this type of litigation to start at about $40,000.

The best way to avoid estate and trust litigation after you are gone is to really think about the people you name as fiduciaries. If you can't trust anyone, there are plenty of independent fiduciaries that you can hire.