San Diego Estate Planning Lawyer Blog

If you are the Successor Trustee of a trust, you have a job with a lot of responsibility. You need to give notice to the trust beneficiaries, inventory and appraise the the trust assets, possibly create sub-trusts, prepare an accounting, file taxes, and make distributions. Administering a trust can be complicated and confusing for the lay person. It involves attention to detail and adherence to certain requirements of the Probate Court.

Here are some issues that may make you rethink doing trust administration by yourself:

1. The beneficiaries request an accounting. Beneficiaries are entitled to an accounting of the trust assets. They can agree to waive an accounting but should any of the beneficiaries request one, it is your obligation as the trustee to provide one. A complicated accounting often involves hiring an accountant to assist you and it may be a good idea to retain an attorney as well.

2. The trust has unusual assets which need to be appraised. Some trusts consist of just real property, cash accounts,securities, personal property, and retirement assets. There are other types of assets which are not as easy to value, such as mineral rights, gas or oil royalties, ranch or farm property, businesses, shopping centers or other commerical real estate, professional practices, and high end artwork and jewelry. An experienced estate planning attorney will have access to various types of appraisers and assist you in making sure all of the trust assets are properly valued.

3. Litigation. If litigation is instituted by a trust beneficiary or by a disinherited heir or even a creditor, it may be time to get an attorney to assist you. Not all estate planning lawyers litigate trust issues so you want to find an attorney that is familar with the probate court and routinely does litigation so that they are familiar with taking depositions and going to trial, if it becomes necessary.

If you are overwhelmed with your duties as successotr trustee and need help in getting through the trust administration process, contact us at Scott C. Soady, A Professional Corporation. Trust administration is one of our specialties and we also handle trust litigation. Contact us for a complimentary and confidential consultation about your trust administration matter.

Estate planning is important whether you are single, married, divorced or separated. For the sake of your minor children, there are a number of issues that warrant discussing with your ex. Here are some of the issues to consider when doing estate planning after a divorce:

Guardianship. If you pass away, your ex, the other parent, will get custody of your minor child, even if you had full custody and your ex just had visitation. The only circumstance that would change this is if your ex is an unfit parent or unavailable such as in prison. Even though this is the case, if you and your ex can agree together on alternate guardians, it could make life easier for your child and the potential guardian should an alternate become necessary.

Inheritance. This issue concerns who should be the person to manage your children's inheritance should something happen to you. Some couples do not have any problem with their ex-spouse handling their child's inheritance if something happens to them. Others do not want their ex-spouse handling the finances for their children. If you create a revocable living trust, you can specify who you want to manage the trust funds for your children. If you don't want your ex to be the trustee, you can choose a relative as trustee or even a family friend of private professional fiduciary who will manage the assets for your children and make distributions according to the trust provisions. Either way, it is a good idea to discuss this with your former spouse. You also may want to put provisions in your respective trusts insuring that your child has visitation with other family members such as grandparents.

Emergencies. This issue is so important to discuss with your ex, particularly if you share custody and don't live near to each other. Make sure you get together and decide who you both would want to be a temporary guardian in case of an emergency and neither parent was available. Maybe another family member, neighbor, or friend, who could step in and take care of the child and get medical treatment in the event of an emergency.

Remarriage. If you or your ex decides to remarry, it is important that the ex-spouse remarrying consult with an experienced estate planning attorney to make sure that the children are protected. Most divorced people that remarry want to provide for their new spouse but not disinherit their children from a previous marriage. This can inadvertently happen if you do not have an experienced estate planning attorney draft your trust.

At Scott C. Soady, A Professional Corporation, we practice in both family law and estate planning and can help you address the issues that occur when divorced couples plan their estate. For any family law issues or estate planning issues, contact us to set up your complimentary consultation.

A fiduciary is an individual who acts in a position of trust such as acting as a guardian of estates,conservator of estates, personal representative of estates, or as an agent under powers of attorney.

A fiduciary as a trustee of a trust has the responsibility of administering the trust as set forth in the trust document, including safeguarding the trust assets, investing assets, accounting to the beneficiaries, and distributing assets as the trust document provides.

A fiduciary can also act as a conservator of an estate of the conservatee, where they are responsible for protecting and managing the conservatee's asset, receiving income, paying bills, and filing tax returns. The duties of a fiduciary acting under a power of attorney are similar. All are positions which require a high degree of honesty and integrity,

Last week in Federal Court in San Diego, a private professional fiduciary pled guilty to wire fraud and money laundering, admitting that she misused her position as a court-appointed professional trustee to steal trust funds from conservatorships, family trusts, and estates. It is estimated that she bilked as much as $2.5 million from accounts between 2006 and January, 2011.

To avoid being a victim of abuse by another who is acting as a fiduciary, make sure you choose an individual who is honest and trustworthy and if you select a private professional fiduciary, make sure that individual is a member of the Professonal Fiduciary Association of California and is licensed with no disciplinary actions filed with the California Professional Fiduciary Bureau. This did not help the victims of the fiduciary recently indicted, however, as she was a member of the Professional Fiduciary Association of California and had no disciplinary record.
Report suspicious activity on the part of a professional fiduciary to the Dept. of Consumer Affairs. For assistance determining is there is abuse with a private individual acting as a trustee or in other fiduciary role, contact us at Scott C. Soady, A Professional Corporation for a complimentary consultation.

An article in the San Diego Union Tribune recently reported that the rate of elder abuse is growing at an alarming rate as people live longer, baby boomers reach retirement, and the economy is shaky. According to the District Attorney's office in San Diego, 183 cases of elder abuse were prosecuted in 2006, 208 in 2009, and 2010 saw 238 cases. This may not seem like a lot of cases but experts say that only 1 in 13 elder abuse cases are reported. Other statistics show that one out of 20 will be a victim of elder abuse.

In January here in San Diego, a 93 year old Pearl Harbor Survivor was found in his home, a victim of personal and financial elder abuse. Most elder abuse occurs in the home and most at the hands of family members or "trusted others' such as caregivers,neighbors, and friends. Other cases involve home improvement scammers, financial planners,home care workers, and even nursing home employees.

Elder abuse can be physical, emotional or financial. In San Diego, the Elder and Dependent Abuse Unit was created in 2000 to identify those individuals who prey on senior and dependent adult citizens. This unit can be contacted at 619-533-3500. Other local resources for elder abuse are the San Diego Aging and Independent Services who can be reached at 800-510-2020, Adult Protective Services at 800-510-2020, US Dept. of Justice Elder Abuse Hotline at 800-640-4661, and for abuse issues at a licensed facility, the Long-Term Ombudsman, 800-640-4661.

The attorneys at the lawfirm of Scott C. Soady, A Professional Corporation handle elder abuse cases which can be filed in the civil court and in some cases, the probate court. The California Welfare & Institutions Code provides a number of remedies for physical abuse, neglect, financial abuse, abandonment, isolation or other treatment resulting in physical harm. It also provides for a cause of action for financial abuse which if proven to be as a result of recklessness, oppression, fraud, or malice in the commission of the abuse, may result in the imposition of punitive damages and attorneys fees. Contact us if we can be of assistance.

Acting as a trustee is a very important job and choosing your trustee can be a difficult decision. In addition to this person handling your estate upon your death, you also have to think about the possibility that this individual may have to take over the management of your affairs if you become incapacitated.

Many people choose an adult child or other family member to be the successor trustee of their trust. But there may be some valid reasons to choose an independent third party to act as your trustee during your lifetime or after your death. Some people do not have children or close relatives or friends they can name to serve as the trustee of their trust. Some people have children or relatives but they do not want to burden their family members with the job. Maybe their children live in another state or have busy lives with their jobs and family. Some people may not want to name any of their children for fear it will jeopardize the relationship between siblings. So what are some other options for your choice of a trustee?

1. Corporate Fiduciaries. Corporate fiduciaries can be banks, trust companies, or trust departments. They are insured and closely monitored by federal and state regulators. The down side may be that some of these corporate fiduciaries have a minimum value of an estate which they will accept. Their fees may be higher than other types of fiduciaries and some beneficiaries feel the service is impersonal.

2. Other Professionals such as Attorneys or CPAs. In past years it was more common to see the family attorney or CPA named as the successor trustee of a trust. Today, although many could certainly serve, most feel that the job of a trustee goes beyond just the legal or the financial aspects and decline to act as a trustee.

3. Private Professional Fiduciaries. Private professional fiduciaries in California have specific training and take an exam to become licensed. Many have years of experience before they become fiduciaries working in a trust department or managing trust funds. Their fees are usually lower than banks and you will receive personal service. It is their full time job to take care of you and your estate.

The estate planning attorneys at Scott C. Soady, A Professional Corporation can recommend private professional fiduciaries we work with and in whom we have confidence. Before choosing a private professional fiduciary, interview several and decide on the one you feel would best fit with you, your family, and your estate.

At Scott C. Soady, A Professional Corporation, many of our cases are trust administration. When an individual has died with a trust, the successor trustee has to inventory all of the assets and value them before they are distributed to the named beneficiaries. Asset valuation can take some time to accomplish and may require specialized appraisers to assist. The date usually used for valuation purposes is the date of death.

A distinction needs to be made between assets which are trust assets and assets which may not be trust assets but nevertheless were owned by the decedent and therefore also need to be valued .How are the various types of assets valued?

Real property is valued by a real estate appraiser who provides a written report describing the property, its value on the date of death, and providing comparable sales which were used to determine value. Commercial property such as apartments, office buildings, farms, and ranches are appraised by real estate agents or appraisers who specialize in that type of property. Crops, animals, and equipment are valued separately from the real property.

Businesses, practices, partnerships, and corporations have to be valued taking into consideration the fair market value of the entity as a whole and also the value of the decedent’s interest. There are special appraisers who handle this type of assets and accountants may also be involved.

Cash on hand at the date of death is obviously easy to value, however coins and bills that have a value other than their face value are often appraised by a coin expert who determines their sale value. Bank accounts, checking accounts, money market accounts, and CDs can be valued by obtaining bank statements showing the values at the date of death.

Cars, boats, and airplanes are valued by determining the sale price as of the date of death. Kelly Blue Book figures can be used for vehicles. Mobile homes, boats, motorcycles, and airplanes have similar publication that can be used as references.

Furniture and furnishing can be valued by having the household contents appraised by an appraiser specializing in household contents. If the value of such items is not significant, it may be possible to estimate the value. Any antiques, jewelry, or artwork should be appraised if they have a value in excess of $3,000.

We can assist you with valuing assets after a death and other aspects of trust administration if needed. Contact us for a complimentary appointment.

A revocable living trust is an important part of your estate plan when you have children. Children under the age of 18 cannot inherit large sums of money. If you have assets in your estate which would go to your minor children and you have no trust, the Probate Court will have to appoint a guardian for your child’s estate. The ability to choose how and when you want your children to be given their inheritance is thus lost.

A revocable living trust is a better alternative so that you can specify how the money will be spent and at what intervals. Many parents are concerned about their child’s ability to handle money when they are 18 or even 21. As an example, a couple who create a trust for their children can provide that if something happens to them, the children will receive one-third of their inheritance at age 25, one-third at 30, and the balance at age 35. In the meantime, the trustee has the discretion to make distributions for support, health, and education. You can also give your trustee the discretion to make distributions to start a business, obtain an advanced degree, or make a down payment on a home. Such dispersals would then be deducted from their next scheduled distribution.

When you create your revocable trust, choosing a trustee is very important since that individual may be handling your child’s money for a period of time. Your trustee should be trustworthy, honest, good with money, and have the ability to get along with the beneficiaries. You can choose an older sibling however many parents feel a family friend may be better suited to deal with the children and make unbiased decisions. You can also choose a private professional fiduciary although these individuals will charge a fee to manage your children’s money.

There are many provisions that can be added to your trust to make it fit your personal needs, values, and goals for your children. At the office of Scott C. Soady, A Professional Corporation, we can discuss with you the best provisions to include in your trust to meet those goals.

Probate in California is the legal process whereby the Probate Court supervises the distribution of assets of someone who has died with a will OR a person who has died without a will or turst (i.e. intestate). The Court also determines the validity of creditor's claims and sees that taxes are paid. After all the decedent's assets are inventoried and valued, and debts and taxes paid, the Court distributes the decedent's assets in accordance with the will or in the case of no will, according to the Probate Code provisions for intestate heirs.

What assets are subject to probate?
1. Assets that are in the name of the decedent.
2. One-half of each community property asset owned by the decedent and spouse.
3. The decedent's interest in real property owned with others as tenants in common.
4. Personal property of the decedent such as cars, furniture, artwork, books, etc.

What assets are not subject to probate?
1. Assets held in a revocable living trust.2. Assets held in joint tenancy with other joint tenants.
3. Assets which have designated "payable on death" beneficiaries or "transfer on death" beneficiaries.
4. Assets held with your spouse as community property with right of survivorship.
5. Assets with named beneficiaries such as life insurance, IRAs, retirement plans, and pensions.

Many people have difficulty handling a probate by themself. There are many deadlines and tasks that people have to do as an executor or an administrator that they feel more comfortable with retaining a lawyer to assist them.. The estate planning lawyers at Scott C. Soady, A Professional Corporation can help you with the probate procedure. Call us if you have a loved one who has passed away with a will or without a will or trust and we will help you get through the process with ease.