San Diego Estate Planning Lawyer Blog

Published on: March 7, 2011

What are Your Duties as the Conservator of an Estate?

In the last blog, we discussed the duties of a conservator of the person. As the conservator of the estate of an individual, you also have duties and responsibilities.

Basically the conservator of an estate acts similar to a trustee. The conservatee’s “estate” is all the money and property owned by the conservatee. The conservator must inventory all of the assets of the estate and have them appraised. The conservator must file an Inventory and Appraisal describing the property and its value. The conservator must determine what income the conservatee is receiving each month. If the conservatee has some investments, the conservator will have to evaluate each investment and determine if it is a wise investment or whether some other investment would be more advantageous for the conservator. Although you have the obligation to manage the assets, you cannot make risky investments. You also must keep the estate’s money and property separate from yours or anyone else’s.

The conservator also has to make a decision as to where the conservatee will live. It should be the least restrictive place and should be appropriate, safe, and comfortable. If the conservatee is in a residential care facility, you may have the duty of taking care of the conservatee’s home, and renting it if the conservatee is moved to another place. You also pay all the bills for housing, food, clothes, transportation, and medical care. The conservator of the estate is also the person responsible for filing taxes.

Published on: March 3, 2011

What are Your Duties as the Conservator of the Person?

by Scott C. Soady

If you have been nominated and approved by the court as the conservator of the person of another individual, you have certain duties and responsibilities.

As the conservator of the person, it will be your responsibility to see to the personal needs of the conservatee. One of these needs is the living arrangements for the conservatee. This may be the conservatee’s own home with caregivers, an assisted living facility, or a locked facility that specializes in patients who have Alzheimers or other memory issues. The conservatee has been adjudged to be incapable of taking care of himself, so it is your duty to select an environment that is safe, physically and emotionally. You also are responsible for seeing that the conservatee has clothing, food, and medical care. This may mean purchasing clothes and hygiene items for the conservatee, grocery shopping if the conservatee is living in his or her own home, and seeing that the conservatee gets to doctors’s appointments. It also can involve transporting the conservatee and seeing that the conservatee has recreational activities. If there is a separate conservator of the estate of the individual, you have to work with the conservator of the estate since that person will be approving the expenses and paying the bills.

You also have ethical obligations to the conservatee. You will have to respect the wishes of the conservatee and realize that even a conservatee has the right to make or change a will, get married, and have a lawyer. If possible, you should consult with the conservatee about decisions you are making and make efforts to promote independence. Medical treatment should be in keeping with the conservatee’s wishes if he or she is able to communicate their preferences. The court will also require that you periodically file a Level of Health Care Plan outlining where the conservatee is living, how the person’s needs are being met, and whether the environment in which the conservatee is living is the least restrictive in view of the circumstances.

Published on: February 28, 2011

When to Get Help With Trust Administration

by Scott C. Soady

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.

Published on: February 26, 2011

When to Discuss Estate Planning With Your Ex

by Scott C. Soady

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.

Published on: February 22, 2011

Avoid Being a Victim of Fiduciary Abuse

by Scott C. Soady

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,

Published on: February 20, 2011

Elder Abuse on the Rise

by Scott C. Soady

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.

Published on: February 16, 2011

Choosing a Private Professional Fiduciary as Your Successor Trustee

by Scott C. Soady

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.

Published on: February 12, 2011

Asset Valuation in Trust Administration

by Scott C. Soady

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.

Published on: February 8, 2011

Why a Trust is so Important for Your Kids

by Scott C. Soady

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.

Published on: February 4, 2011

Assets That Are and Are Not Subject to Probate

by Scott C. Soady

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.