New Jersey Trusts and Estates Attorneys
It is important to choose a trustworthy person to act as your agent, successor trustee, or conservator when preparing estate planning documents.
Unfortunately, sometimes the people you trust may take advantage of the powers you have given them in estate planning devices. One example of this is the Power of Attorney contains improper powers, such as the ability of an Attorney in Fact to make gifts to themselves, or the power to place you in a facility. It is necessary to be aware of circumstances that may lead to abuse.
Undue influence is a common circumstance leading to financial abuse of the elderly. Undue influence arises when:
- There is a confidential relationship between you and another person
- You have suffered weakness in your mind due to the influence of that person
- That person has gained an unfair advantage over you
For example, a person who isolates an elderly person from their friends and family may be exerting undue influence in an effort to acquire the elderly person’s assets either before or after death.
If you believe that the person you have appointed to act as your agent has breached your trust and is not acting in your best interests, you can revoke or amend a power of attorney or revocable trust. You can also demand an accounting. If there is evidence of mismanagement of funds, the agent may be required to make restitution to you.
The Law Offices of Hunziker, Jones & Sweeney offers consultations to those who believe a fiduciary relationship has been abused. Contact the firm for assistance with your legal matter at (973) 256-0456 or or fill out our contact form for a consultation.
Removing a Fiduciary During or After Probate
Because neither the court nor the surrogate supervise how an administrator or trustee handles the estate, conflict can sometimes arise between the beneficiary of a trust or will, and the fiduciary. New Jersey courts grant much deference to the testator’s wishes as to whom they have chosen as a fiduciary. Therefore, fiduciary removal is granted sparingly.
To remove a fiduciary, the aggrieved party may initiate a proceeding by way of a Verified Complaint in New Jersey Superior Court for the removal of the fiduciary, and an accounting. If there is evidence of waste and mismanagement of estate assets, or it is found that the fiduciary has been self dealing, or committed another wrongdoing, the Court will remove a fiduciary for cause. Typically, the burden is on the beneficiary to show that a wrongdoing occurred. A beneficiary may request an accounting after one year has elapsed after probate was granted.
If you have any questions or concerns about the administration of a Will or Trust, contact an attorney who is skilled and experienced in the area. The attorneys at Hunziker, Jones & Sweeney provide high quality legal representation to clients concerning all matters of wills and trusts. Call (973) 256-0456 or fill out our contact form for a consultation.