Most of us experience some disquiet when we first meet with a professional whom we've sought out to help solve a problem. It can be hard to put into words the situation that we're in, or even what help we need. We don't know what we don't know. We do know that something is wrong, and we need help in getting it fixed.
Yesterday I was pleased to deliver a presentation at the San Francisco Law Library's Lunchtime Speaker Series. The topic I spoke on is both relevant and important to every family: "Elder Financial Abuse: A Budding Revolution in Estate Litigation."
Blundering trust and estate bandits are still bandits - outlaws secretly or openly defiant of laws and responsibilities that go with the legal obligations required of those who possess or are otherwise responsible for estate or trust assets. While the vast majority of trust and estate professionals take their fiduciary obligations seriously, unfortunately some outliers, some might say "bandits" - those who take "unfair advantage over others usually to procure inordinate payment or profit."  Inordinate payment may range from outright theft to unconscionable overbilling that drain trusts and estate funds.
Among California's several high-stakes estate and trust litigation law firms, Hackard Law is one of the leaders. When estate and trust beneficiaries have high stakes in litigated disputes, they have a major interest in its outcome. There are no magic bullets in estate litigation - there are processes and knowledge-based strategies that can improve outcomes - but the risks of litigation always exist.
Last week the influential wealth-management magazine ThinkAdvisor called me for an interview on a complex but important topic: why blended families are prone to estate and trust litigation, and why stepmothers often occupy a central role in these conflicts. This is a subject I've covered at length in my book The Wolf at the Door: Undue Influence and Elder Financial Abuse.
Recently I spoke with reporter Anya Kamenetz of the Chicago Tribune. She had contacted me for my thoughts on the rising challenge of elder financial abuse in America, and how we can spot the warning signs, something I've written about in-depth in my book The Wolf at the Door: Undue Influence and Elder Financial Abuse. Anya begins her article with a story from a reader. It describes a textbook potential case of undue influence: an elderly divorced man has a new younger girlfriend with designs on his estate assets originally intended for his children. Unfortunately these stories are increasingly common, which means family members need to be alert for signs of exploitation.
In California, a trustee has a significant amount of control over the trust administration process. The trustee has the power to gather the assets of the trust, work with creditors, and distribute the trust assets to the beneficiaries. The trustee also owes the beneficiaries of the trust (and the trust itself) a fiduciary duty to act in their best interests at all times. Unfortunately, this does not always happen, and trustees sometimes breach their duties to beneficiaries to the extent that it justifies their removal .
Trusts are an extremely common way for people to transfer assets to others at the ends of their lives, and it is easy to understand why. When a person uses a will to dispose of assets, the estate must go through a process known as probate, which can prove long and complicated, and cost the estate a significant amount of money in fees. On the other hand, using a trust to transfer assets to beneficiaries avoids probate, as the transfer takes place immediately on the occurrence of some specified event.