San Diego Estate Planning Lawyer Blog

In the estate planning world we used the term "fiduciary" a lot. Trustees, administrators, executors, and agents under a power of attorney are all "fiduciaries". What does that term mean?

A fiduciary is an individual who undertakes to act for and on behalf of another in a particular matter. A fiduciary has to perform his duties with the utmost of trust and honesty. A fiduciary is expected to be loyal to the person to whom he owes the duty (the "principal"). He must not put his personal interests before the principal and must not profit from his position as a fiduciary unless the principal consents.

The most common circumstances where a fiduciary is involved in estate planning is when a trustee administers a trust. The trustee is a fiduciary who must administer the trust estate for the benefit of the beneficiaries. If an individual dies with a will, the executor of the will is the fiduciary who administers the will and distributes the estate to the beneficiaries. An estate administered for someone without a will is called an administrator, also a fiduciary. All of these individuals have the duty to act with the utmost of loyalty and impartiality.

Other examples of fiduciaries are conservators and agents acting under a power of attorney or a health care directive.These individuals also have the duty to act in good faith and in the best interests of the principal.

The job of being a fiduciary is a serious one. A fiduciary who breaches his fiduciary duties can be held liable on a number of theories including negligence, fraud, financial elder abuse, even criminal prosecution. You should know what is expected of you so that you can properly perform your fiduciary duties.
If you need help, feel free to contact us.

Adult children typically believe that their parents will leave all their assets to them equally however it is not unusal in our estate planning business to see clients who want to give unequal distributions to their children, leave gifts to friends or a favorite charity - even disinherit a child. Unequal distributions may be because they have already helped to support or educate one of their children or feel that one of their children has a spendthrift issue, or a variety of other reasons. We also see instances when a parent has remarried and wants to leave assets to his or her current spouse and is afraid that the children will not understand. Some people think a failure to be provided for in their parent's will or trust is a sign of an absence of love.

According to an article in the New York Times talking to your children about your plans before you die can significantly lessen the chance that they will challenge your estate plan after you die. The kids may get angry at the situation but their anger will be directed at you, not at the favored beneficiaries after your death. The article quotes Gerald Le Van, a wealth mediator, who says that the children and grandchildren may not like what you have chosen to do, but at least they can feel like they were informed and hopefully will respect your wishes.Communication can also help relieve the tension between the adult children of a first marriage and the children and/or spouse of the second marriage.

One of the richest men in the nation, Warren Buffet, has provided education for his children and grandchildren but intends to leave his vast estate to charity. His family is well aware of his estate plan.

Recently we had a post on our estate planning blog about electronic wills, now only recognized by the state of Utah. What about electronic marriage?

Two law professors at Michigan State University are advocating e-marriage. Their suggestion arose out of a situation where a Marine Sgt. met a Japanese woman in Japan. She became pregnant and he was sent to Iraq. The two wanted to find a way to get married so they had a proxy marriage (recognized in some states where the couple are not in the same location). Then unfortunately, the Marine was killed in Iraq, causing estate planning issues and immigration problems for his widow and son.

The two law professors propose e-marriage as a convenient and flexible way for couples to marry that are separated by distance. With the help of the Internet couples could get married without being physically present together. There would have to be safeguards against identity fraud and the law professors acknowledge that an e-marriage, depending on state law, may not carry with it the same legal rights as the usual marriage. Obviously many groups see this as an erosion of traditional marriage and would oppose such a plan.

At Law Office of Scott C. Soady, A Professional Corporation, we handle both estate planning issues and family law. See our family law website for articles about divorce, child support, custody, paternity, pre-nuptial agreements, and other family law issues. Your initial consultation is free for both estate planning and family law.

Pets are a large part of our daily life. Pets can provide relief from stress, companionship, and an opportunity to get some exercise and socialization. Pets also can have a beneficial effect on our health in other ways.

A study at the State University of Buffalo showed that people with high blood pressure who adopted a dog had lower blood pressure readings in stressful situations than those without a dog. In another study of hypertensive stockbrokers, those who got cats or dogs were found to have lower blood pressure than whose who didn’t.

A study in Australia found that pet owners also have lower cholesterol levels than people without pets.

The National Institute of Health found that people who have pets go to the doctors less than people without pets.

Studies have shown that heart patients who own pets have a better change of long-term survival than patients without pets.

Another study found that men with AIDS were less likely to suffer from depression if they owned a pet.

For older adults, pets help to alleviate stress, depression, and loneliness. Studies have shown that seniors who have a pet go to the doctors less often

Pets are increasingly seen in hospitals, hospices, and nursing homes. Why? Because dogs have a calming effect on people who are ill or old.

At the office of Law Office of Scott C. Soady, A Professional Corporation, we often are asked by clients how they can provide for their pet upon their death or incapacity. Planning for your pet can be done by adding provisions in your trust to leave not only a pet you have at death but also a sum of money to maintain the pet. We can also prepare a pet trust which is enforceable now in California. Our article about estate planning for pets provides more information about your options.

A family allowance is a amount of money which the Probate Court can order the estate of a decedent to pay to persons who the decedent was obligated to support or who the decedent was in fact supporting at the time of his death. Priority goes to family members such as a surviving spouse or minor children but parents and brothers and sisters can also request an allowance if they were supported in whole or part by the decedent. The family allowance must be reasonable in amount and is in the discretion of the judge based on the circumstances. The allowance, once ordered, continues until there is a final distribution of the estate or by further court order.

An unusual situation has arisen in the case of Michael Jackson' estate. Joe Jackson, the father of Michael Jackson, is seeking a family allowance in excess of $15,000 per month, claiming that he was dependent on his son for support. Michael did not provide for his father in his will or trust. The father and son had been estranged for years and Michael had stated he did not want his father to receive any part of his estate. Michael apparently was not supporting his father in the sense of writing him checks.

Jackson filed a petition in the Los Angeles Probate Court claiming his only income is $1770 from social security and his expenses exceed $15,000 per month. The Court has already ordered family allowances for Michael's children and mother. An evidentiary hearing will be he held in May, 2010. It will be interesting to see if the LA court orders an allowance on the theory that Michael supported his mother and she apparently gave some of that money to the father. As with many issues surrounding the singer's death, stay tuned.