Who does a trust attorney represent?

Who does a trust attorney represent?
Who does a trust attorney represent

Trusts can serve a valuable role in any type of estate plan. You have worked hard for what you have and want to leave a legacy for your loved ones and anyone else you want to support. A trust is a legal instrument and entity that takes possession of the assets. A trust is managed by a trustee, who administers the assets on behalf of the beneficiaries.

Many people may be involved in the trust process. While each may not automatically need a trust attorney at all times, some occasions require them to get legal help. Trust lawyers can play multiple roles in the process, but they cannot represent all parties at the same time. Usually, the grantor and the trustee are the most common parties who need legal help. The grantor needs to speak with an Sebastian estate planning attorney who knows how to establish the trust and consider their various options. The trustee needs legal advice to ensure they remain within the bounds of the trust’s provision and uphold their fiduciary duties.

You should speak with a trust lawyer at various points during the process. Depending on your role, it may help to have a trust attorney on retainer so they can advise and represent you when necessary. If your trust issues overlap with personal injury matters, consulting a Sebastian trust lawyer can provide additional guidance.

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The Many Purposes of Trusts

Trusts can serve a number of valuable functions, including:

  • Allowing your family to stay out of probate because the assets have already been re-titled into the name of the trust
  • Taking care of certain loved ones who may need money in the future, such as someone who has special needs
  • Allowing you to provide to the cause or charity of your choice
  • Helping you manage tax obligations when transferring assets to beneficiaries
  • Protecting your hard-earned assets from the claims of creditors
  • Preserving your assets when you may need long-term care in the future

Although certain laws may always apply to a trust, you also have the flexibility to design the trust based on your specifications and needs. A trust lawyer can devise the right type of trust or combination of several types for the most effective solution.

How a Trust Attorney May Help

A trust attorney can represent any party who is involved in the process of establishing or administering a trust or one who is a beneficiary. They may play a variety of roles throughout the process.

The Grantor

A trust is created and established by a grantor. They may choose to start a trust to meet various needs, including:

  • Helping their family avoid probate and more easily distribute assets to a beneficiary
  • Taking care of specific loved ones who may need financial assistance in the future
  • Moving assets out of your name so you can qualify for Medicaid benefits for nursing home care
  • Helping minimize your tax obligations when you may owe estate tax
  • Providing for one of your preferred charities

Trusts can take on several different forms, and there may be more than one option suitable for your specific situation. A trust lawyer can advise you on what may work for you, or they can present options that you can consider.

When you establish a trust, the terms of the actual document are crucial. Those are the terms the trustee must follow in administering the trust itself. The trust document is binding, and the trustee must follow it at all times. The beneficiaries have a potential cause of action if the terms of the trust are not observed. The trust lawyer can help you decide how you want the trust to be managed and handle drafting the actual document. It is essential to put everything in writing correctly at the outset of the trust because these are the conditions the trustee must follow. There will be no chance to revise the terms of the trust if it is an irrevocable one. The trust lawyer will oversee all the necessary documentation to establish the trust.

The Trustee

The trustee is the person who must manage the trust. There are day-to-day issues in trust administration that require a particular set of experience. For example, the trustee must manage the property based on the instructions in the trust document. They need to manage the trust for the beneficiaries, which is a significant responsibility. The trustee is a fiduciary, and they owe a duty to the beneficiaries. Specifically, the trustee owes:

  • A duty of care not to be negligent in their management of the trust
  • The duty of loyalty to avoid conflicts of interest in their duties
  • The duty to disclose relevant information to the beneficiaries
  • The duty to act in good faith when managing the trust

The trustee should seek legal advice to ensure they stay within the bounds of their fiduciary duty and the law. Otherwise, the trustee can be personally liable for any damages, meaning they must pay out of their pocket. When in doubt, they should seek legal help from a trust attorney to ensure that they are managing the trust according to its terms and to protect themselves from personal liability.

The trustee may need to defend themselves, and they can often use help in dealing with the beneficiaries if there are any conflicts. The trust attorney can work out resolutions to any disputes. If the beneficiaries sue the trustee, the trust attorney can defend their client in court.

Beneficiaries

If you are a trust beneficiary, the assets need to be managed for your benefit. The entire purpose of the trust was to preserve and protect the assets for your benefit at a certain point in time. You may need legal advice yourself to protect your interests because you have questions about how the trust is managed or what your rights are as a beneficiary.

You may believe that the trust is not being managed according to its terms or that the trustee is not observing and upholding their fiduciary duties. As the beneficiary, you are the one to whom the trustee owes fiduciary duties, and you can sue when they are violated. You may be entitled to damages from the trustee personally when their breach of fiduciary duty has caused you a financial loss.

The trustee also owes the beneficiaries several other duties. Beneficiaries may request an accounting from the trustee to learn more about how the trust is managed and how trust assets are spent. The trustee is under a duty to disclose certain relevant information to the beneficiaries. If the trustee is violating any of the duties that they owe to beneficiaries, it may be time to hire a trust lawyer.

You may also need representation when it comes to distributing and using trust assets on your behalf. You may not believe that the trustee is distributing assets in accordance with the terms of the trust, and you may need to take court action to force them to use assets when necessary. For example, the trustee might be managing assets on behalf of someone who is disabled, spending money as necessary to take care of their needs, yet they will not do so as necessary. A trust attorney can file a lawsuit to ensure the trustee follows the exact terms of the trust.

The Executor

One or more trusts may be part of an estate that an executor must administer (the executor may not be the same person as the trustee, and both may need help from a trust attorney). Even though a trust can make things much easier for an executor, they still need to handle many details when the grantor passes away. Even though the trust keeps these particular assets out of the probate process, the executor may still have legal questions and need certain types of professional legal help. For example, they may need to file a tax return for the estate and not know exactly how tax laws may affect the filing.

Like the trustee, the executor might also become involved in disputes with the heirs. The executor is also a fiduciary who can be personally liable if they breach the duties owed to the heirs. A trust attorney can provide professional representation to the trustee, and their presence can reduce the possibility of a dispute leading to litigation.

A Trust Attorney May Not Represent More Than One Party

Trust attorneys need to be very conscious of what role they play. They cannot have a conflict of interest. For example, a trust attorney cannot represent both the trustee and the beneficiaries to the trust when there is a dispute. If the beneficiaries have their own concerns about what the trustee is doing, they should seek their own trust attorney, as opposed to the lawyer who is already representing the trustee. A trust attorney may be unable to represent more than one beneficiary if they have differing interests in the case. Following conflict of interest rules is a serious matter for attorneys, and they need to be very careful about how many hats they can wear with regard to an individual trust.

You must also understand the scope of the trust attorney’s representation. Sometimes, their client may be the trust itself, as opposed to an individual party. The trust attorney should make it clear who they are representing, but you should always check with them if you have any doubts.

Hiring a Trust Attorney Can Help Preserve Trust Assets and Avoid Litigation

A trust attorney provides several key services to various participants in the process. They can assist the trustee in the administration and management of the trusts. The attorney’s work could help ensure that the trust is managed in accordance with its terms of creation and the fiduciary duties to which the trustee is subject.

The presence of a trust attorney could also reduce the chances of litigation involving the trust. The trustee will know they are on firmer legal ground when they act, and they may avoid actions that can subject them to liability. At the same time, beneficiaries may see that the trustee has hired an attorney and may notice an effort to comply with and follow the law.

If there are any disputes involving the trust, a trust attorney can help resolve them. Although the trust attorney may not represent more than one party, they can communicate with the other party’s attorney to negotiate a resolution to the problem. A trust lawyer can explain what the lawsuit process entails and represent you while you engage in alternative dispute resolution in hopes of staying out of the courtroom.

When to Hire a Trust Attorney

The grantor should hire a trust lawyer at the outset of the process. The estate planning attorney that the grantor hires can handle the process of creating and establishing the trust. The trustee should have legal representation any time that there is a consequential event involving the trust. They need to be on safe legal ground, so they should not make any major decisions on their own without consulting with a trust attorney. From the beneficiary’s standpoint, they should seek help from a trust lawyer if they feel that the trustee is not performing their job properly or are breaking the law. The executor should also consider hiring an attorney to help them perform their duties.

What to Expect from a Consultation with a Trust Attorney

When you reach out to a trust attorney for a consultation, you can expect to receive personalized guidance on your specific needs and concerns. The first step in the process is typically a one-on-one meeting with the attorney to discuss your goals and objectives. During this consultation, the attorney will take the time to listen to your unique situation and gather all the necessary information to provide you with the best possible advice.

During the consultation, the attorney will explain the various options available to you and help you understand the potential benefits and drawbacks of each. They will clarify any legal terminology or concepts that may be unfamiliar to you, ensuring you have a clear understanding of the process.

A consultation with a trust attorney is an opportunity to receive personalized guidance and expert insight into the trust planning process. By working closely with an attorney, you can know your options and make informed decisions about the future of your estate. So, whether you're just starting to think about creating a trust or need assistance with an existing one, reaching out to a trust attorney is a valuable step towards achieving your goals.