Q. As an expert in trust and probate law, you have a wide and varied practice. Tell us a little about it.
Bixby: For over 40 years, I have specialized in trust and probate matters that range from advising clients generally, to representing trustees, beneficiaries, personal representatives, guardians, conservators, and other fiduciaries. In these various roles, I have to not only have vast knowledge of the law, but also be able to understand people at a deep level so that I can successfully advise and educate them. Many complicated issues come up in estate planning, which is why people often try to avoid it for as long as possible. Thinking about your own demise is not fun, but everyone needs an estate plan. We can reduce the chances of people fighting with each other in the future even if we cannot eliminate it entirely. Human nature is not likely going to change – especially when there are significant sums of money involved.
Q. In your work as a mediator and negotiator, you have to bring both sides together in trust disputes which are often fraught with difficult family dynamics. How do you resolve these highly-charged emotional cases?
Bixby: Very often these disputes involve family members or relatives, and oftentimes the disagreements include issues other than just finances. It could range from control of a family business to who is in control of trust funds, to who gets the dining room set. Some of the issues are big and some are small, but there is usually significant emotion involved.
Negotiating and mediation are an art. These are not easy jobs nor can someone claim to be a licensed practitioner. There is a reason why most people want someone with some grey hair to be a mediator, conciliator or negotiator to their settle disagreements. Knowledge of the law is not sufficient; one also needs to have the people skills and experience in resolving disputes. It’s actually harder than being a judge in court who can order people to do things a certain way. A mediator has to get everyone to buy in and agree.
Surprisingly to the parties themselves, mediation is often successful, even when they have started by saying that the matter is unsettleable. Getting past the emotion, and being creative, are ways to reach a successful resolution.
Q. Disputes over trusts and wills are unlike any other kind of litigation because the key witness is no longer alive to testify. How do you litigate and win these complex cases when they end up in court?
Bixby: In contests over the validity of documents such as wills and trusts, generally the best witness is no longer around, so we have to rely on other witnesses, circumstantial evidence and common sense. The best witnesses are often the people who do not have a financial interest in the case themselves. Not surprisingly, the memory and testimony of family members is consistent with whatever result is best for them financially. There are also always people who want to try to testify as to what someone else thought or knew, and they find out that most of that is not even admissible in court.
Many of these cases wind up settling at some point before a trial, but when a trial in court is necessary, the judge or jury have to do their best to figure out who is right and who is wrong. It’s rare that they have an option to make a creative decision, as opposed to just a determination that the document is either good or it’s not. It’s challenging work being the litigator or the mediator, but I love untangling these extremely complicated disputes.
Q. Can you explain the difference between a trustee and a trust protector?
Bixby: Traditionally, trusts have been broken down between the fiduciary and the beneficiary. The fiduciary is the one who is legally in charge, and is often referred to as the trustee. The beneficiary is the one who receives things from the trust. Inherently, there is a conflict of interest between a trustee and a beneficiary, and sometimes there are disputes between them. Sometimes things happen that are questionable, and there may have not even been a dispute yet.
Trust protectors are a newer concept than trustees, and some estate planning instruments are drafted to include this third party “trust protector” to help ensure that the intention of the settlor of the trust is carried out and to reduce the chances of litigation. In short, a trust protector can review decisions made or intended by a trustee at the request of the trustee or the beneficiary. A trust protector sometimes reviews accounts as well. It’s a job that can be similar to an auditor, a mediator or even a judge. With the right person named as the trust protector, disputes can be resolved more efficiently. It’s a good development in the world of trusts and estates, which usually changes very little from decade to decade.
Q. Should every person with a trust have a trust protector? Who needs this type of protection?
Bixby: No, some trusts are already irrevocable, and it’s too late to introduce that concept. For larger trusts, it can be a very good idea to include a trust protector for the purposes mentioned above. There is also the possibility these days of reforming or decanting some trusts to add the role of a trust protector.
Q. I bet you have some interesting stories from your long career as a probate and trust attorney. What are some of the most unusual disputes you have been involved with?
Bixby: Too many war stories for a short piece like this. However, truth is definitely stranger than fiction, and the things that people wind up fighting over can be ridiculous. Most recently during the pandemic, I handled a trial over the rights to a wine collection that had already been sold. A parent and child could not agree on who really owned it.
Years ago, I handled a well-known case over the estate of a woman struggling with homelessness who was originally assumed to be mentally incompetent and have nothing, but was subsequently found to have a large estate, including real estate. A Massachusetts state legislator and his top aide were the primary beneficiaries of her will, which was drafted by the legislator’s best friend. The woman’s sister, who was left $1, was not found until six years later (thanks to a California relative doing a family tree), and she raised questions about who was really entitled to the estate assets. I was hired because there was no precedent for reopening such a case after so much time had passed. There were some serious wrongs to right in this case, and I got the court to overturn the will, meaning that the state legislator had to return the funds.
Most cases are routine, but still interesting. It’s a grey area as to whether people who have some degree of dementia or Alzheimer’s are competent enough to be signing documents and making gifts, but it’s done all the time, and the fights usually don’t arise until after that person is deceased.
Q. Any advice or parting words of wisdom for people who want to prevent estate planning and probate nightmares in the future?
Bixby: Get good advice early on. Sometimes it’s a good idea to get more than one opinion. Then, rather than wait until the situation devolves into messy and expensive litigation, try to take steps to resolve it, and use people with the highest expertise. As with medical issues, if you need a quadruple bypass, don’t go to a general practitioner who just graduated from medical school. It’s a very small percentage of lawyers overall who specialize in trust and probate law, particularly on the side of litigation and resolving disputes.
Brian Bixby is a partner in the Private Client Group at the law firm of Burns & Levinson in Boston. Throughout his esteemed career, Bixby has earned the reputation as the go-to lawyer for some of the most challenging probate and trust cases. His practice is focused on all aspects of estate planning and fiduciary administration including mediation, conciliation, probate court litigation, appeals, and family law. He often serves as a trust protector, and is regularly called upon by the courts to serve as a guardian and conservator in trust and probate family law cases involving financial exploitation. He can be reached at firstname.lastname@example.org.