Tips and general information from David C. Streicher, a Portland, Oregon attorney (licensed in Oregon and Washington, with 28 years' experience) specializing in estate planning, small business and tax planning who welcomes your comments or questions at 503.417.2119 or firstname.lastname@example.org
Loans to children are a frequent source of family conflict — and often instigate lucrative estate litigation projects for lawyers. Here’s why.
Loan vs. Gift
There is a huge legal difference between a loan and a gift, namely that a gift does not have to be repaid. But loans may gradually mutate into gifts. For example, under Oregon law, a suit must be filed within six years to collect a debt. If no suit is filed, collection of the debt is barred by the statute of limitations. Thus, if a parent makes a loan to a child and takes no collection action for six years, the child has no legal obligation to repay and the loan has effectively become a gift. This has several consequences. First, and most important, the executor is probably barred from offsetting the child’s inheritance by the amount of the loan. In other words, the loan is irrelevant when determining the child’s share of the decedent’s estate. Continue reading →
Estate litigation occurs with increasing frequency. Perhaps the most frequent challenge (known as a “will contest”) is a suit alleging that the will is invalid because the signer had inadequate mental capacity or was under the influence of others. In practice, only wills of sick or elderly individuals are challenged. Continue reading →
A seldom-mentioned downside to living trusts is the trustee’s lack of accountability to any court. Usually this is a good feature, and saves time and money for everyone. But not always.
Court oversight serves no purpose when the parents are the trustees, since it is their money and they should not be accountable to anyone. But it can be a big deal when a child becomes successor trustee, whether before or after the death of the last surviving parent.
For whatever reason, the successor trustee is seldom transparent in sharing information with the other beneficiaries, who are usually siblings. Human nature being what it is, the beneficiaries assume the worst, i.e., that there is a reason the trustee is keeping them in the dark. For example, since not required by the Oregon Uniform Trust Code, the trustee may feel there is no need to prepare or circulate an inventory of what is on hand. Unless prodded, the trustee may also decline to provide an accounting of receipts and disbursements. The trustee may take excessive trustee fees or pay personal expenses from the trust. The court does not police these items.
It is true the beneficiaries have limited rights under the Uniform Trust Code to file suit to obtain information, etc., but they must hire an attorney to do so. In a probate (or a conservatorship), the executor is required by law to share information, and must secure court approval prior to taking executor fees.
Beware of the rogue successor trustee when using a revocable trust.