Probate Litigation

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Aretha Franklin Didn’t Have An Estate Plan…

Aretha Franklin Didn’t Have An Estate Plan…

ARETHA FRANKLIN DIDN’T HAVE AN ESTATE PLAN

               Legendary singer Aretha Franklin died on August 16, 2018.  She was 76 years old and apparently died without an estate plan.

As an estate plan lawyer O’Fallon, I am surprised that Franklin, worth an estimated $80 million at her death, did not have her affairs in order.  Federal estate taxes will likely be incurred and the IRS will likely audit the estate because of the value.

The estates of celebrities can often result in years long court battles in the state where they died, among family members and non-family members alike.  I previously wrote about this type of mess with the estate of Prince, who passed away in April 2016.   His $200 million estate, over two years later, is still not settled and has been described simply as “a mess”.

https://www.legacylawmissouri.com/update-estate-prince-two-years-later/

Franklin died intestate (without a will) in Michigan, so the laws of that state will control.  She was survived by four sons, all between the ages of 48 and 63.  Under Michigan law, each of her sons should received a ¼ interest in her estate, or about $20 million.  However, these figures are subject to reduction as creditors come out of the woodwork to make claims against her estate.  Whether these claims are legitimate have to be resolved by the probate court and probate attorneys near me.  This can result in attorney fees growing and growing, as well as the basis costs of litigating these claims eating up the value of the estate.

Apparently Franklin had been advised many times by her lawyers to create an estate plan, but never did so.  “She never told me “No, I don’t want to do one.  She understood the need.  It just didn’t seem to be something she got around to” said Don Wilson, a Franklin lawyer for almost three decades.

This lack of follow through with creating a will is not uncommon.  As a will trust lawyer St. Peters, I often meet with people who state that they knew that they needed to get their affairs in order, but can’t explain what took so long.

My opinion has always been that because it’s not pleasant to think about, many people put off getting an estate plan together as long as possible.  Others are the exact opposite.  I’ve found that younger people, particularly new parents are very proactive about creating powers of attorney, naming guardians in their wills, a trust for young children and other documents to protect their family.

The other phenomenon I see though is that people learn from the mistakes of their own family.  The loss of a parent or a sibling and the mess that ensued with their estate can be a huge influence in someone getting their affairs together to avoid the same headache for their children.

 

Help! My Trustee Is A Fraud!

Help! My Trustee Is A Fraud!

 

HELP!  MY TRUSTEE IS A FRAUD! 

               Trustee’s should be trusted, but are not always trustworthy.  In fact, it’s unfortunately not uncommon for a chosen trustee of a trust to be acting fraudulently or in a manner which is not in line with their powers and duties as trustee.  As an inheritance attorney St. Peters, I often get frantic calls from beneficiaries in this situation.

If I believe there is malfeasance by a Missouri trustee, I will either file litigation or send a demand letter seeking information related to the trust.

I’m A Trust Beneficiary, What Rights Do I Have?

Remember, if you are a beneficiary, you are entitled first and foremost to a copy of the trust.

Second, you are entitled as a beneficiary to an accounting or reporting of trust activities from the trustee.  How often depends on the terms of the trust, but this is a common area where trustees engage in improper behavior:  they don’t keep beneficiaries informed of what’s going on with the trust assets.

I’m often surprised at how long clients will endure the lack of information from a trustee.  In some cases in can be months, but it’s just as often years.  Years of excuses or non-responses from a trustee.

In these cases, you must take action.  You must hire an experienced inheritance attorney, St. Peters, Missouri to decide the best course of action.  In some cases, it’s best just to file litigation right away, assuming there is a colorable claim of malfeasance by the trustee.  Examples would be not responding to communications from a beneficiary, not providing the accounting, or misappropriation of trust funds or some combination or all of these things.

If your trustee is supposed to be sending you money every month and suddenly is jetsetting around the world, there’s almost definitely something wrong.

Okay, I’ve Got A Lawyer, What’s Next?

If there’s misconduct by the trustee, the course of action is usually to file litigation, often in an expedited procedure called an injunction hearing.  The idea with an injunction hearing is you have enough information of bad conduct that your attorney can show a likelihood of success in the pending lawsuit, but you need immediate action to stop any bad conduct.  From there, the court can demand that the trustee account within a certain amount of time, temporarily remove the trustee and appoint someone else or take other action.  The point here is that you have to show an emergent situation.

Ultimately, the goal would be to permanently remove a bad acting trustee, obtain a damage award for misconduct, save assets from being wasted and track down where trust funds went.

Can I Get My Attorney’s Fees Paid For?

This is a common question from beneficiaries in this situation and I’m completely sympathetic to it.

The answer is it depends.

The court has discretion to award fees, and often will if the beneficiary is successful.  Now, the problem from where do those funds get paid back?  Well, bad acting trustees usually don’t take money from a trust because they want to invest it in gold.  They usually have blown through at least part of the money and getting money back after a judgment is obtained is a completely new ball of wax.

Conclusion

In lieu of that, or often in addition, the beneficiary can usually be paid for out of the trust proceeds, if there are adequate funds left.  This would almost certainly be the case where there are other beneficiaries who have benefitted from the litigation.  In that case, the judge might apportion the fees to be paid on a pro rata basis among the beneficiaries, most likely from their portion of the trust.

A final piece of advice:  It’s 2018.  Most attorneys practice in a couple of practice areas.  Some still practice in many.  This situation, however, requires a specialist in probate litigation.  Knowledge of the judges, special procedures in particular probate divisions in different counties and the law, most importantly, is really an advantage.  A divorce lawyer who just happens to be a nice guy and your friend shouldn’t be your counsel in this type of case.  Hire someone with experience and make sure that they can back up their experience when you meet with them.

 

Family of Robin Williams Involved In Estate Litigation

Family of Robin Williams Involved In Estate Litigation

FAMILY OF ROBIN WILLIAMS FIGHTING OVER HIS ESTATE

Mr.  Williams hanged himself last year at his home in California.  He apparently had created an estate plan but a dispute has resulted between his wife and his children over the distribution of his personal property (a very common source of disagreement in many estates) and the cash needed by wife to maintain the home which was distributed to her out of the estate.  Given the wealth of the late actor, we can assume the home was large and thus the annual maintenance to keep it up was a number which could be (and is being) disputed between the children and the wife.

Arguably, these details could have been included in the estate plan created by Mr. Williams.  The annual maintenance costs in prior years could have been figured and an estimated figure obtained, assuming higher costs in the future.  Nevertheless, it appears that was not done and now his survivors are fighting it out in court.  This not only wastes time and energy, but creates bad blood among family members, all of whom have undoubtedly been devastated by the loss of their father and husband.

The lesson here is that estate litigation can be avoided with proper and thorough estate planning.  The estate plan here probably just needed to be more specific as to the maintenance costs for the home for the wife.  As the article states, however, the family has already received many differences which is good to hear.  Often estate litigation cases can drag on for years without a resolution and their costs can be staggering.

Contingency fee probate litigation….

 

Duel

 

A contingency fee agreement is a type of legal fee agreement in which an attorney agrees to litigate your case without being paid for the legal fees until money or property is distributed to you.  This can mean that you have less risk of loss if the dispute is unsuccessful.   Our law firm will sometimes to a case on a contingency fee basis for larger probate and trust litigation matters in Missouri.  Usually we will only consider a case for this type of litigation if it involves more than $250,000.

Our firm is unusual in that most law firms that practice in the area of probate and trust litigation will only consider taking these cases if the client can pay fees on an hourly basis.   In some cases we will start a case on an hourly or flat fee arrangement and then consider a contingency fee arrangement after we have had more of a chance to investigate the case.

Contingency fee agreements can be well suited to probate and trust litigation.  Typically, in probate or trust litigation one or more children have been disinherited or have had their inheritance greatly reduced and one child or a non family member will receive most or all of the estate.

In these cases the child who will receive the bulk of the estate has control of the money and can often use it to hire an attorney to defend the challenged will or trust.  The children who are contesting the will or trust have to use their own financial resources to fund their litigation.  If they don’t have the financial resources to hire an attorney on an hourly basis then they may be left with two choices. First, don’t file the case.  Second, find a lawyer who will take the case on a contingency fee.

There is no one way to pay for the cost of probate or trust litigation.  Each person must evaluate their own case and circumstances to determine if an hourly rate or contingency fee makes the most sense for them.

If you have a trust or probate dispute in St. Charles County, St. Louis County or anywhere in Missouri, call Legacy Law Center to discuss your case and your options.