Defending Trust & Trustees

If you are a trustee of a trust and have been accused of mishandling it, failing to disclose, mismanagement, misappropriation, embezzlement, fraud, breach of fiduciary duty, failing to account, or self-dealing, then it is extremely important to obtain strong, experienced legal counsel immediately. Being accused of any breach as a fiduciary is already like walking across a wobbly, tightrope without a balance bar or a net; it can be done, but treacherous. Being a fiduciary is a difficult, thankless job that, often, creates “damned if you do and damned if you don’t” scenarios. Obtaining good advice regarding the best decision to make is imperative. There are nuances to fiduciary liability that cannot be ignored, including a burden shift that requires to the fiduciary to explain his or her behavior or to show its fairness to the beneficiary or beneficiaries. It is not possible to, simply, deny the allegations, nor is it sufficient to say to the beneficiaries: “prove it.” A fiduciary must be prepared to come forward with evidence justifying his or her action or behavior, and be ready to fix things or bring current anything that is behind, like a disclosure or accounting, that will allow a beneficiary some comfort and assurance that the trust administration is being done correctly.

Addressing issues with the beneficiaries early can avoid costly litigation. Waiting to address the issues can have devastating consequences if the case ever makes it to a jury. You have a right to and must defend yourself, and to do so without making matters worse. The natural reaction to getting sued as a fiduciary that believes he or she has done everything right is to be offended by the ingratitude of the beneficiary. An emotional fiduciary can cloud his or her judgment and cause him or her to breach a duty or make a poor decision that creates additional liability exacerbating the situation and making the lawsuit worse. Having represented many clients against their trustees, our trustee defense attorneys are well-aware of the pitfalls that get trustees in trouble and sued.

At Spencer, Johnson & Harvell, PLLC, we have the knowledge, experience, and skill necessary to defend a fiduciary from false, incorrect, confused, uninformed or misguided accusations. We will work to protect you from malfeasance allegations. It is important to work with your beneficiaries to attempt resolution to make things right to allow you to continue as trustee or to get you extricated from the situation without any liability. If not, we are prepared to go to trial and show a jury the accusations – innocent or deliberate – are wrong and that you acted appropriately and should not be held liable.

Our experience in trust litigation matters and gives us insight into the lawsuit, the suing beneficiary’s position and the information provided by the beneficiary, allowing us to evaluate trustee’s exposure and to work to design the best possible strategy to address the accusations against you and issues before you.

Our team of defense attorneys is prepared to help if you have been accused of:

• Failing to follow the terms of the trust
• Mismanagement
• Mishandling trust funds
• Misappropriation
• Embezzlement
• Self-dealing
• Breach of Fiduciary Duty
• Failing to properly account