Koller Herlihy LLP represents trustees, beneficiaries, and heirs in disputes concerning trusts and estates. Our cases involve breach of fiduciary duty, construction and trust instruments, trust and will contests, elder abuse, and accounting disputes.

Disputes concerning trusts and wills are heard in Probate Court. Disputes sometimes involve allegations the trustee has breached his or her duties, sometimes by failing to account, sometimes by failing to treat beneficiaries impartially, and worst yet – misappropriation from the trust or decedent.

Another common type of dispute is a disagreement about the decedent’s intent. Conflicts often stem from a would-be beneficiary learning for the first time that they have been written out of a trust or trust amendment after the death of a loved one. Koller Herlihy LLP is experienced in dealing with matters involving allegations that a decedent lacked capacity when they signed a trust instrument or was influenced by someone in their life to alter their plan.

Breach of Fiduciary Duty

Our attorneys have handled dozens of trust litigation cases involving allegations of breach of fiduciary duty. Such a claim may arise if the trustee engages in self-dealing, fails to follow the terms of the trust, acts in the interest of one beneficiary over another, fails to disclose relevant facts, fails to account, or misappropriates trust assets.

Accounting Disputes

A beneficiary may demand an accounting of the trust, even where the trust waives the requirement. Upon a request, if the trustee does not provide an accounting within 60 days, the beneficiary may file a petition asking the court to order the trustee to file an accounting with the court. The trustee must disclose all transactions in his or her accounting. Many disputes are resolved when the trustee discloses all the trust assets and transactions in a probate accounting. Conversely, accountings sometimes demonstrate misappropriation and/or mismanagement of trust assets, which may lead to legal action being taken against the trustee.

Trustee Suspension and Removals

Beneficiaries of trusts may seek removal of a trustee or temporary trustee suspension for many reasons. These include failing to take necessary action, violating the law, wasting trust assets, misappropriating trust funds, or treating beneficiaries unfairly. Unfortunately, removing a trustee can take time. For this reason, suspension may be appropriate. We routinely handle matters involving trustee suspension and removal.

Petition for Instruction

Trustees often find themselves between a rock and a hard place. For example, one beneficiary wants to purchase the family home in Alamo out of the trust. One beneficiary objects that the buy-out price is too low. Whatever the trustee does could expose the trustee to a charge of breaching the duty of impartiality. In these situations, the trustee may wish to file “Petition for Instructions.”

This procedure allows the trustee to explain their predicament to the court, offer a proposed solution, and then ask the judge to approve their decision. The petition is then served on all the beneficiaries, who may object to the proposed solution and offer their own. While these petitions often involve issues of significant monetary value (like real estate and investment accounts), they are sometimes necessary for other reasons, such as the disposition of the settlor’s car collection or works of art.

Wills & Trust Contests

A will or trust contest typically involves allegations that the signatory of a will or trust was influenced to sign the document or lacked capacity when the document was signed. Less frequently, claims that the document was forged are levied against the respondent. Sometimes, wills and trusts are disputed because they provided a gift to a disqualified person, such as a caregiver or attorney.