In This Issue: - Riverside County Bar Association

Your client may be able to shift
the burden of proof to the will or trust
sponsor. In order to do so, they must
prove three elements. First, the person
who benefits under the will or trust had
a confidential or fiduciary relationship
with the testator. Second, the person
who benefits was active in procuring
the will or trust. Third, the person offering
the will or trust unduly benefits
from the new document.
When the document hasn’t been
changed but your client hasn’t gotten
their inheritance, it is usually because
there is a negligent or unresponsive
trustee. The remainder of this article
focuses on trustees, because executors
face certain time limitations imposed
on them by the Probate Code. There
are two ways to deal with the negligent
or unresponsive trustee. First, petition
the court for their removal. Second,
petition the court to compel them to do
what they are supposed to do.
A petition for removal makes the
most sense if the trustee is supposed
to remain in place for some extended
period of time. An example of this would
be where the trust does not call for
the outright distribution of trust property.
This can happen because the trust
requires distributions over staggered
periods (e.g., one-third of the trust
assets at age 35, one-half of the remainder
at age 40, and the remainder at age
45), the trustee is managing property
for a minor child, or the trustee is managing
property for incompetent adults.
Very commonly, people want their
trustee removed because they are angry
at the trustee. On a pragmatic level,
trustee removal may not make sense if
the trust calls for an outright distribution
and what you are seeking is to have
that property immediately distributed.
Trustee removal is another cause of
action in addition to the distribution.
In other words, it is one more thing you
have to prove and one more thing for
the court to decide. It often increases
litigation costs and delays a conclusion
of the case. This is usually an acceptable tradeoff if the trustee is supposed
to manage the trust for an extended period of time, is causing losses due to
poor investment management, or is taking trust property. If you have proof
of truly terrible conduct that endangers the trust property, then you may be
able to have the trustee suspended and a temporary trustee appointed while
the removal petition is litigated.
Trustee removal may be an unacceptable tradeoff if the goal is to get
the trustee to do their job and bring the trust administration to a close. A
petition to instruct the trustee to perform a particular task usually makes
the most sense when the trust calls for an outright distribution. If your client
knows what property the trust holds and wants their share distributed
according to the terms of the trust, then this can be the fastest, most effective
remedy available.
Scott Grossman is certified by the State Bar of California as a specialist in estate planning,
probate and trust law. The Grossman Law Firm’s website is grossmanlaw.net.
This article is excerpted from Winning the Inheritance Battle and is used with the
author’s permission.
Riverside Lawyer, June 2012 17