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The Blog

Estate Planning for Minors

March 7, 2016 by Verleana D. Green Leave a Comment

Estate Planning for Minors is more important than some think.  When clients are preparing their estate plans, many have children below the age of 18, and desire to have their children take most, if not all, of their assets upon their transition.  Children are often left as the beneficiaries of life insurance policies, retirement accounts and even as real property joint tenants.  In this article I will share why leaving your children as beneficiaries of your insurance, retirement accounts and as joint tenants on real property is not the best option, and why executing a Trust and other estate plan documents may provide your child with the best planning for their future.  

An individual under the age of 18 years old is considered to not have sufficient “capacity” to accept transfers of assets.  If a parent dies and leaves his or her assets, including, but not limited to, life insurance policies, retirement accounts and real property to their child who is a minor, the child would need a guardianship of the estate established on their behalf. A guardianship of the estate requires a petition to the court, an initial hearing and further hearings, depending on the case. Notice is given to the child’s brothers and sisters, paternal and maternal grandparents and any living parent. A filing fee to file a guardianship petition is required, and most of the time, individuals hire attorney.  Thus, the process can get expensive.  Even if the child has a living parent, that parent is still required to establish a guardianship of the estate to receive any assets left to their child by the deceased parent.  There are two basic problems with a guardianship of the estate. First, the funds are generally ordered for placement in a blocked bank account, and none of the funds can be spent for any purpose without filing a petition to the court to allow some of the money to be released. Second, the funds are distributed to the minor when the minor turns 18. A better way to leave assets to your child is through a Uniform Transfer to Minors Act transfer, and a better way is through the vehicle of a trust.

The most simple method of making gifts to minors is the California Uniform Transfers to Minors Act (CUTMA).  Under CUTMA, a Custodian is named (typically in a Will) to hold, invest, and spend assets for the minor child when the parent transitions. The Custodianship may last until the minor reaches age 21 if the parent specifies, and if no age is specified, the minor becomes the outright owner of the gift when the minor reaches age 18. The drawback to such an account is that the minor automatically receives the assets left in the CUTMA account at 18 or 21, and is free to do what they like with the asset!  This could mean spending money on a new car, vs. college tuition, selling home, vs. retaining the home as an asset, and even traveling the world and coming back home flat broke!   A better method is to establish a formal Trust for minors.

A Trust allows assets to be held for the child, even after he has reached age 21. A Trustee is appointed to spend, invest and hold assets for the child until the parent deems the child is ready to manage the assets, which may be never!  This protects against the child foolishly spending money without the consent of the Trustee. Typically, the Trustee uses the Trust assets for the health, education, and support of the child. When the child reaches whatever age is specified in the Trust document, the child gets the assets without any further supervision.  In some trusts, the child can get lump sum payments when they reach certain ages.  In other trusts, the Trustee manages the Trust until the Trust assets are fully exhausted.  A parent has broad authority and creativity to distribute assets to their child as they see fit through a Trust.  That is the beauty of it.  If you have a child with a drug or alcohol addiction, the Trustee can distribute funds to make sure that the child’s basic needs are met without providing a lump sum of funds that could further contribute to the addiction.   A child who is a “spendthrift” would also be protected from over spending and shield creditors from reaching those funds.  Trusts establish a way of transferring assets to your child upon your transition without the need of a court petition, and without the worry that your child may not spend your hard earned assets frivolously.  

Establishing a Trust and guidelines for your minor children to receive your assets upon your transition should be considered a high priority.  Their future depends on it!  

***The information in this article is provided for informational purposes only and does not constitute legal advice. Transmission of this information or the receipt of this information does not constitute an attorney-client relationship between the sender and receiver of this newsletter. You should not act or rely on any information contained in this newsletter without first seeking the advice of an attorney.This article is the sole property of the Law Offices of Verleana D. Green. Please do not use without our permission. Thank you!

Filed Under: Estate Planning, Trusts

Why Should I Execute A Living Trust?

October 7, 2015 by Verleana D. Green Leave a Comment

Living trusts have been a hot topic in estate planning in recent years- and for good reason.  Living trusts make the transition of death for family members a much easier process than without one.  The primary advantage of a living trust is that property in a trust is not subject to probate. Another advantage of executing a living trust is conservatorship avoidance- also a court supervised proceeding.  

In California, probate proceedings can be extremely costly due to court fees, publication fees, probate referee fees, and of course, attorney’s fees. Attorney’s fees in probate proceedings are calculated based on the assets in the deceased individuals total estate.  These fees are based on statute, and are generally awarded to the attorney representing the executor or administrator in a probate proceeding.  And, if property is involved, attorney’s can request what are known as “extraordinary fees” in probate proceedings. This fee is in addition to the normal statutory fee attorney’s are paid. Attorney’s fees can add up pretty quickly in probate proceedings. In addition to the cost savings, a living trust that has been properly funded can be administered within a few months.  

Executing a living trust allows the trustee to act more quickly than an executor or administrator could to administer and distribute an estate.  The reason is that a trustee can act independently and without court supervision. The initial petition to administer the estate, a petition to confirm sales of property, petitions for instructions, and a petition for final distribution all have required notice periods that contribute to the time delays of a typical probate. Except for the filing of the estate tax return, a typical trust often can be administered in a few months, whereas a typical California probate estate lasts a minimum of a year to 18 months (California Estate Practice (Cal CEB).  

In addition to the benefits of ease of estate administration at death, a funded trust can also prevent  the costs and inconvenience of formal conservatorship proceedings in the event of incapacity.  The costs of implementation and management of a conservatorship estate can be devastating to a family.  Executing a living trust can prevent this from happening. If someone who has executed a living trust becomes incompetent or incapacitated, the terms of a living trust can provide a method for determining incapacity or incompetency relating to trust estate management. A smooth transition of administration can occur because the trust estate will be managed by a successor trustee selected by the person who initially executed the living trust. The trust also can assure that the incapacitated person is properly provided for in accordance with a standard of care designated in the trust.  

Similar to probate at death, conservatorship proceedings are managed by the probate court, and similar cost and time issues are involved.  A petition is required, assets are appraised by a probate referee, an investigation by the court is done- all of which cost.  In addition, attorney’s fees and conservator fees can add up to thousands in the first year alone.  Notices similar to those in probate proceedings at death are required in conservatorship proceedings, and information relating to ones incapacitated condition is made public through court documents.  If a trust is properly executed and funded, information relating to ones incapacity remains private and court involvement is not required. A successor trustee can assume their duties without the delays of court supervised conservatorship proceeding.  

Many individuals still have not executed living trusts, and the full probate court calendar is a testament to this fact.  VDG Law provides comprehensive estate plans for individuals and families to ensure that the transition of your incapacity or death is seamless. Contact VDG Law for a consultation, and plan ahead so that you can save a lot of time and money in the future.  

***The information in this article is provided for informational purposes only and does not constitute legal advice. Transmission of this information or the receipt of this information does not constitute an attorney-client relationship between the sender and receiver of this newsletter. You should not act or rely on any information contained in this newsletter without first seeking the advice of an attorney.This article is the sole property of the Law Offices of Verleana D. Green. Please do not use without our permission. Thank you!

Filed Under: Trusts Tagged With: Living Trusts

The Probate Process Explained

December 30, 2014 by Verleana D. Green Leave a Comment

As the Baby Boomers begin to age and make their transition, many do not have a Living or Revocable Trust, thus requiring the family of the deceased to initiate Probate Proceedings.  In this article, I will discuss the basics of Probate, and the easiest way to navigate through the sometimes year long process.
Before I begin with an explanation of the process, I would like readers to understand that even if you have a Will, you will still need to go through the Probate process.  Many individuals have the mistaken belief that if they leave their assets in a Will, their family or beneficiaries will not have to probate- this is absolutely false!  Of course there are simplified procedures under limited circumstances (the estate assets are less than $150, 000, the property is left to a spouse or real property of small value), but in most instances, particularly if the deceased owns real property in California, the deceased Will needs to be Probated.  The only way to avoid probate, (other than summary procedures discussed above) is to create a Living or Revocable Trust.
The Probate process begins with the Executor named in the Will, or in the case where there is no Will, an Administrator, filing Petition documents with the court and paying the required filing fee (typically $465.00).  Notice to all beneficiaries and heirs at law will need to be sent, and publication of the administration of the deceased estate will need to be posted in a newspaper of general circulation where the decedent resided.  The Executor and/or Administrator will then gather all assets of the Estate, and begin taking an Inventory of the property.
Many times, property will need to be sold, and if the Administrator or Executor has Independent Administration of Estates Act Powers to sell the property, they can do so without petitioning the court to sell the property (but the Administrator or Executor will also need to send Notice of their actions to all beneficiaries before selling).  If not, the Administrator or Executor will need to request the courts permission to do so.  In addition, the Executor or Administrator will need to provide for any creditors making a claim against estate by either paying the creditor, or denying their claim.
Notice will also need to be sent to various government agencies, including the Franchise Tax Board (see an attorney to determine what government agencies you will need to contact).
Once the creditor claim period has expired, all debts of the estate have been provided for, an inventory of estate assets has been filed with the court, the Executor or Administrator may petition the court to close the estate, and distribute monies to beneficiaries.
The process of Probate can take anywhere from 6 months, on the short side, to years if there are complicated property issues, or beneficiaries do not get along and litigation ensues.  It is important to determine at the outset if you will need an attorney to walk you through the process.  Most of the time, attorneys are needed to work through the filing of documents, addressing creditors and managing beneficiaries.  Being an Executor or Administrator is not an easy task and should be taken on with great caution, as the Executor or Administrator is acting in a fiduciary capacity and is subject to being sued.
The Probate process can be complicated and time consuming.  The best way to deal with Probate (and any legal issues for that matter) is to consult with and hire an attorney.  VDG Law Provides comprehensive services in the area of Probate practice, and can walk you through the process.
***The information in this article is provided for informational purposes only and does not constitute legal advice. Transmission of this information or the receipt of this information does not constitute an attorney-client relationship between the sender and receiver of this newsletter. You should not act or rely on any information contained in this newsletter without first seeking the advice of an attorney.This article is the sole property of the Law Offices of Verleana D. Green. Please do not use without our permission. Thank you!

Filed Under: Probate

Elder Law 101 for Attorneys

May 8, 2014 by Verleana D. Green Leave a Comment

Elder law attorneys provide advise and advocate for elders, their families and caregivers. Elder law attorneys have special knowledge in the practice areas and related disciplines of Estate Planning ( including special needs planning) , benefits Eligibility (including Medi-Cal eligibility), Elder Abuse (under the Elder Abuse and Dependent Adult Civil Protection Act),  Conservatorship practice, Trust Administration, Family Law and Civil and Criminal Law relating to Elder Abuse. Elder law attorneys have specialized knowledge in Community and service based needs, Long Term Care Planning, Reverse Mortgage options and financing for elders the future, and also are a referral source for geriatric care and social services.  Elder law attorneys can provide Estate Planning services, but Elder Law attorneys provide more comprehensive services as relating to Elder Care and resources than Estate Planning attorneys do.

 

Some of the common ethical problems elder law attorneys face are issues related to Conflicts of Interests in representing the elder client, Duties of loyalty and Confidentiality and capacity issues relating to the elder client.

 

Conflicts of interest issues may arise when an elder law attorney represents the elder client and their family members.   An example of this is when the elder law attorney provides estate planning services for the elder client, and the elder client then requires a Conservatorship. The family typically wants to retain the elders attorney for representation as conservator ( State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 1989-112). Under Cal. Rules of Prof.  Responsibility 3-3-310, an attorney is required to disclose actual or potential conflicts in representation, and required to obtain informed written consent of the Client and family members and a waiver for all parties, including the elder and family members. The attorney in the above example should obtain written informed consent from all parties. 

 

Although there is no codified duty, an attorney has a duty of undivided loyalty to the [elder client] which is fiduciary ( People Ex rel Dept. of Corps. v. SpeeDee Oil Changes Sys. (1999) 20. Cal. 4th 1335. In some instances, family members believe that the attorney representing the elder is representing the entire family. To avoid this, good practice would be to advise participating family members in writing they are not being represented by the attorney. 

 

An attorney has a duty to maintain Client confidences and secrets of clients(Business and Professional Code section 6068(e)).   This also covers non verbal communication. Elder Law attorneys may face this issue when there is a family member who is taking the elder client to the meeting or present in the meeting. Good practice is to meet with the elder client independently of family members, even if that family member was the attorneys first point of contact with the attorney. This duty to protect client confidences may come up in the estate planning context. It is good practice for an attorney to consult with the elder client independently of their participating family members, who may inform or even transcribe for the attorney what the elder wants. Best practice is for the attorney to verify any changes with the elder directly and in confidence- that the elder wants to execute or change their estate plan. An elder law attorneys duty of confidence also comes up when the Elder law attorneys observes issues relating to the capacity of the elder client based on their demeanor and actions. 

 

Clients with potential limited capacity pose several ethical concerns for elder law attorneys. If the elderly client is losing capacity, the attorney must determine if the Client is capable of engaging the attorney (attorney-client agreement). In addition, the attorney must determine if the elder is capable of making estate plan decisions, if there are any signs of elder abuse, and how to properly maintain the duty of confidence with the elder client if a fiduciary is involved.

 

Representing seniors requires significant skill and care.  Practitioners should always have a team of professionals available to serve the needs of one of our most vulnerable classes of persons, and make sure to keep up on the changes in laws impacting the Elderly.

 By Verleana D. Green, Esq.- Owner, Law Offices of Verleana D. Green

Filed Under: Estate Planning

5 Tips on Making a Will

March 31, 2014 by Verleana D. Green Leave a Comment

  1. Determine if You Need A Will.  Most individuals and families will need some form of estate planning in place in the event of their demise. A Will is an estate planning tool that requires court supervision to administer your estate upon your demise in most circumstances – meaning your heirs or beneficiaries will usually have to initiate court proceedings to collect assets left in your Will.  ALWAYS speak with an attorney before executing a Will, or any estate planning documents, to determine the best estate plan for you and your family.
  2. Have Capacity!  In most states, an individual must be 18 years or older and have capacity to make a Will.  Capacity typically requires that the person executing a Will has the ability to identify the assets in their estate, identify their heirs, or the persons they are leaving their property to and understand they are disposing of their property upon their demise by creating a Will.
  3. Select An Executor You Trust.  An executor is the individual responsible for administering your estate, and has access to all of your assets upon your passing.  It is important to choose an executor you trust to handle your assets in a professional manner, as they will be held accountable to beneficiaries and the court for the actions they take in administering your estate.
  4. Have 2 Witness Present When Signing Your Will.  It is best practice to have 2 witness present when signing a Will, although this is not always required.  The witnesses should be disinterested, meaning not a beneficiary of the Will.  Witnesses should sign the the presence of the testator, or person executing the Will, under penalty of perjury of the laws of the state that the Will is being signed.
  5. Sign the Will.  Remember to sign your Will and date it!  Will contests are a frequent occurrence in courts of all states,  even if there are no contest clauses included in the Will!  Signing a Will in the presence of two (2) disinterested witnesses provides validity to the Will if later contested.

By Verleana D. Green, Esq.- Owner, Law Offices of Verleana D. Green

Filed Under: Estate Planning

Advanced Health Care Directives: What Are They and Why You Need One

March 29, 2013 by Verleana D. Green Leave a Comment

Accidents happen every day and families are continuously faced with making tough medical decisions on behalf of their loved ones. Most often, clients seeking to prepare an Advanced Health Care Directive wait until it is absolutely necessary, or when it is too late. An Advanced Health Care Directive is a basic estate planning tool that everyone should have, regardless of age or medical condition. This article will outline what Advanced Health Care Directives are, and why they are important. It will also discuss the alternative to executing an advanced health care directive-a conservatorship of the person.

What is An Advanced Health Care Directive?

An Advanced Health Care Directive is a legal document explaining one’s wishes about medical treatment if one becomes incapacitated or lacks the mental capacity to make life decisions. (citation omitted). The document directs family members and friends on what to do when a loved one is faced with issues of irreversible coma, artificial life support, or terminal illness. An Advanced Health Care Directive can also provide for final arrangements in the case of death, such as memorial services, funeral and burial arrangements. An Advanced Health Care Directive can only be executed by a competent adult.

Why Do you Need One

An Advanced Health Care Directive allows incapacitated persons’ wishes to be heard. Often times, family members do not discuss what they would like done if they were faced with issues of terminal illness or incapacitation. It can be difficult for a family to make decisions on serious issues like whether or not to take a loved one off of life support. An Advanced Health Care Directive allows the incapacitated individual to speak-to make those difficult decisions for themselves.

A primary health care physician is also named in the Advanced Health Care Directive. This ensures that the patient is receiving the proper care from a trusted and reputable physician. In addition to an incapacitated person’s wishes being heard-and primary care physician being named-an Advanced Health Care Directive also assists in avoiding potential litigation.

Terri Schiavo was on life support from 1998-2005. She was 26 years old, and had no previous health issues before slipping into a coma, which caused severe brain damage. Terri Schiavo did not have an Advanced Health Care Directive. Ms. Schiavo’s husband wanted her taken off of life support, while her parents wanted her to remain on life support. Florida state law determined that Ms. Schiavo’s husband could terminate her life because she was in persistent vegetative state. Ms. Schiavo’s parents appealed this decision on several occasions. Ultimately Mr. Schiavo prevailed and Terri Schivao was taken off of life support after 7 years of litigation. If Terri Schiavo had an Advanced Health Care Directive, her family would have saved thousands of dollars in litigation and attorney fees, as Ms. Schiavo would have spoken for herself.

Many individuals wait until it is too late to attempt to execute an Advanced Health Care Directive. Only competent and capacitated individuals are permitted by law to execute Advanced Health Care Directives. A Conservatorship of the person, however, can allow a family member or other surrogate to make health care decisions for someone who is incapacitated or incompetent.

Alternative to an Advanced Health Care Directive- Conservatorship of the Person

A Conservatorship of the person is an alternative to executing an Advanced Health Care Directive. A conservator of the person may be appointed for a person who is unable to provide properly for his or her personal needs (see Cal. Probate Code section 1801 (a)). The conservator manages the physical health, medical care, food, clothing and shelter for the conservatee (Id.), and in some instances, makes important medical decisions on behalf of the conservatee. Initially, the conservatee is presumed to have the capacity to make medical decisions (see Cal. Probate Code section 2354), unless the court finds that the conservatee lacks the capacity to give informed consent to any form of medical care under California Probate Code section 1881 and 2355. The conservator in this case would have the power to make all medical decisions on behalf of the conservatee.

With all benefits of a conservatorship it can be an expensive alternative. To establish their role, a conservator may have to hire an attorney to petition the court and file the necessary legal documents to obtain a court order for a valid conservatorship of the person. Most attorneys charge $200-$400 an hour for conservatorship proceedings.

Conclusion

Executing an Advanced Health Care Directive is simple, and costs an average of $300-$600 for an attorney to draft. It is an important document to have, as everyday events happen which may require direction as to your medical treatment. Allow your wishes regarding end-of-life decisions, medical treatment and final arrangements to be heard and execute an Advanced Health Care Directive right away!

Verleana D. Green, Esq.

This article is the sole property of the Law Offices of Verleana D. Green. Please do not use without our permission. Thank you!

 

Filed Under: Health Care Directives Tagged With: advanced health care directive, conservatorship, death, health care directive, legal documents

Benefits of Executing Trusts

March 29, 2013 by Verleana D. Green Leave a Comment

Trusts are popular estate planning tools that are extremely useful in the transfer of property upon death.  Trusts can also be useful for property management during the lifetime of the settlor ( the person creating the trust). This article will discuss what revocable trusts are (irrevocable trusts are not the subject of this article), the formalities of executing a revocable trust and the benefits of executing a trust.

What is a Revocable Trust

A trust is a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary) (Black’s Law Dictionary 723 (2nd Pocket ed. 2001).  In the typical revocable trust situation, the settlor (the person who owns the trust property or corpus) manages and maintains the trust property for the rest of their lives. Upon the death of the settlor, a successor trustee is usually appointed to manage the trust property, and to then distribute the trust property to the beneficiaries under the terms of the trust.

Formalities of Executing a Revocable Trust

A revocable trust is created by a settlor or by married settlors who manifest an intent to create a trust.  A trust must be funded with assets and have beneficiaries to be valid. (Cal. Probate Code §15200-15205).  In most instances, the settlors’ assets are renamed, including real property and bank accounts, to reflect the name of the trust.  A trust does not have to be notarized to be valid, but it is good practice to do so.  It is advised that you seek the services of an attorney when executing a trust agreement.

Benefits of Executing a Trust

The primary reason most individuals execute trust agreements is to avoid probate. Persons executing simple wills to transfer their property upon death are subject to probate proceedings.  This means that the executor named in the will is responsible, with the assistance of an attorney, for filing the will with the court in the county where the deceased passed, initiating probate proceedings to distribute the deceased assets ( which includes filing notice for creditors’ claims),  and obtaining court approval for final distribution of the deceased estate assets to beneficiaries.  Most documents filed in probate proceedings are public information.

By contrast, assets transferred to  the revocable trust before the settlor’s death are not part of the settlor’s probate property and are not subject to probate proceedings (CEB, California Estate Planning, §6.3)  This means that statutory and extraordinary attorneys’ fees, court costs and potential creditor claims can be avoided if a valid revocable trust is executed .  Moreover, probate proceedings are public and can create tension between family members who do not take under the will.  By contrast, most trust distributions are private and involve the trustee dispersing trust assets to beneficiaries.

In addition to the cost benefit of executing a revocable trust, time can also be saved by executing a trust versus a simple will upon the decedent’s death.  Typically, the probate of a will can take a minimum of 7 months to several years.  In the case of a trust, distribution can take 1 or two months, depending on whether the trustee and beneficiaries are in agreement with the distribution and there are no extraordinary issues relating to the management of the trust.

Another benefit of executing a revocable trust is that a revocable trust can serve as an alternative to a durable power of attorney .  Most trusts include clauses that appoint a durable power of attorney for the management of trust assets if the settlor becomes incompetent.  This person is usually the successor trustee.

There are numerous benefits to executing trust agreements, particularly for individuals with real property and high net worth’s.  For more information regarding executing a trust agreement, please contact the Law Offices of Verleana D. Green.

Filed Under: Revocable Trusts, Trusts Tagged With: death, estate planning, property, revocable trusts, trusts

Choosing a Power of Attorney, Executor and Trustee of Your Estate

March 29, 2013 by Verleana D. Green Leave a Comment

Selecting a Power of Attorney, Trustee and or Executor of your estate can be one of the most important aspects of your Estate Plan. The person you select in one of these positions will have control over your assets if you become incapacitated, and or upon your passing when your estate is distributed to your heirs. As you meet with family and friends, consider who would make the best person to perform the tasks of Power of Attorney, Trustee or Executor of your estate (conservatorships will not be covered in this article).

This article will cover the responsibilities of your Power of Attorney, Trustee and or Executor of your estate, what to look for when selecting persons in these various positions and the liability for misconduct in providing services in any of these fiduciary roles.

Responsibilities of Power of Attorneys, Trustees and Executors

Power of Attorney

The person you select as a Power of Attorney will be responsible for managing your assets, paying your bills, and managing your business dealings if you should become incapacitated. Basically, this person acts in your stead when it comes to your finances. Some of the more important aspects of being a Power of Attorney are: access to your bank accounts, buying, selling or encumbering your property, and litigating cases on your behalf.

Executor and Trustee

A Trustee and Executor have very similar roles. They are the persons you appoint to manage your estate after you pass away. They also have very similar responsibilities as a Power of Attorney, since they will manage your finances upon your passing. A Trustee and or Executor will have the responsibility of, managing, and distributing your assets to your desired beneficiaries upon your passing. Similar to a Power of Attorney, a trustee has the duty to pay your bills, and properly manage all of your investments.

A Power of Attorney, Trustee, and Executor have substantial powers, and appointing a person to act in any of these capacities should be done with great thought and care.

Some things to look for when selecting a Durable Power of Attorney, Trustee and Executor

1. Person’s expertise in handling financial matters. You want to make sure you have someone who is experienced in handling financial transactions in both their business and personal lives. Particularly, if you have a larger estate, you want to choose someone who has expertise in investments and who has other experts available as resources, such as lawyers, accountants, and tax professionals.

2. Family Members. If you are selecting a family member, select someone who can get along with all family members. You can avoid litigation, costly delays in distributing assets to your beneficiaries and heirs and prevent unnecessary and costly will and trust contests. Selecting a family member or close friend that gets along with everyone prevents your beneficiaries from spending more money on unnecessary attorney’s fees and court costs.

3. Selecting a professional fiduciary. When choosing a Power of Attorney, Executor, or Trustee, a professional may be the best route. I would recommend a professional fiduciary if you have a large estate, even though you will likely need to pay a fee for the professional fiduciary’s services. An experienced professional has the skills to manage complex estate plans, and has resources readily available to resolve tax problems or other issues. A professional fiduciary has no familial connection to you, so it lessens the likelihood and number of disputes and litigation. A professional fiduciary is also required to carry a bond as insurance; if the professional fiduciary is found to have misappropriated your estate assets, it can be recouped quickly. Many professional fiduciaries have extensive financial management experience, investment experience, and experience with dealing with family problems.

Liability for Mismanagement of Estate Assets

If you appoint a family member who does not have the financial expertise required to administer your estate properly and instead mismanages your estate or account, they can be sued personally. In addition, they can be held criminally liable for fraud. I previously had a Client who chose to appoint a family member as Trustee of their estate based on the fact that the proposed Trustee was the oldest child. Although honorable, this was not the best thing for the Client. The Client passed, and the Trustee was sued for Breach of Fiduciary Duty for mismanaging their deceased parents’ assets. The Trustee was not a “bad” person, just inexperienced in handling such complex financial matters. If you know this person does not have the capacity and or willingness to handle complex financial transactions, you should not appoint them as they can be sued, and even jailed for mismanagement of your assets.

When selecting a fiduciary, look at the persons’ and or entities track record and expertise for handling financial transactions, as well as their ability to manage potential family disputes.

For further questions regarding selecting a Power of Attorney, Trustee or Executor, please contact VDG Law at (510) 479-0768.

This article is the sole property of the Law Offices of Verleana D. Green. Please do not use without our permission. Thank you!

 

Filed Under: Power of Attorney Tagged With: estate assets, executors, power of attorney, trusts

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Office Phone: (510) 479-0768
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Email: vgreen@vdglaw.com

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