Top 10 Trust and Will Myths: Episode 3–It’s the LAW!

Many people operate under the mistaken assumption that the law is black and white.  That is to say, the law is enforced as it is written…period.  But the law is not so black and white after all.

In fact, most of the time there is plenty of grey area in the law.  This happens for two primary reasons: (1) many ares of the law have some gaps that do not address your particular issues, and (2) the law is applied to FACTS.  Oh those difficult facts.

The law is never applied in a vacuum.  For example, a Trustee does not breach his duty simply because someone comes to court and says he was “negligent.”  Being “negligent” is a legal conclusion, not a fact.  Instead, it is your job as a beneficiary to bring in the facts that would establish your Trustee’s negligence.  Maybe the Trustee invested the entire Trust fund in pork bellies and lost it all.  Or maybe the Trustee entered into a bad contract with a pyramid scheme.  Whatever the facts are, you have to bring them into court.

And then the facts must be heard and decided upon by a judge.  Just because you believe some action is “negligent” does not mean that the judge will agree with you.  In many cases, the judge may see the facts in a different light that may result in your Trustee NOT being found negligent.  For example, if the Trustee lost money in investments, but followed the advice of a professional investment advisor, a judge may decide that the Trustee is not liable for any losses.  You may disagree, especially if the professional advisor was bad, but you just never know how it will play out in court.

The bottom line is that the law is not so black and white.  It takes good facts applied to good laws to get the outcome you desire.  Don’t underestimate the challenge that awaits you in your Trust or Will lawsuit.