Two primary methods of disposing of one’s estate are by a will or by a revocable living trust. Many people today choose the revocable living trust. There are several advantages to having a trust. One is that a trust avoids the time and expense of a court supervised probate proceeding. Many people find this attractive. Some expense is involved in administering a trust post death, but it is substantially less than a probate proceeding. Please look at other articles on the website discussing trustees and trust administration.

A second advantage is that it is private. Usually, there is no court proceeding, and the general public cannot look at the public records to see how your estate is being distributed.

Another benefit of a trust is that it may help avoid a conservatorship proceeding. This is because a properly drafted trust nominates a successor trustee to take over when you cannot handle your affairs. In most cases, there is no need for the court to impose a conservatorship, i.e. take control of your affairs, because you have chosen someone to have that responsibility as trustee. Please look at our article on conservatorships.

Another factor for you to consider, if you choose a trust, is who will be the successor trustee upon your death or even during your lifetime if you do not want to be the trustee or cannot be trustee. You want to consider someone financially sophisticated and who you trust to carry out the terms of your trust without court supervision.

One of the negatives of a trust is that you must make certain that your assets are titled in the name of the trust or assigned to the trust. If this is not done properly, you risk having those assets probated. We refer to the need to see that assets are in the name of the trust as a “hassle factor.” If you frequently buy and sell property or move accounts around to different institutions, you must be vigilant to make sure the assets remain in the name of the trust. If you elect to have only a will rather than a trust, you avoid the hassle factor, but your estate will likely go through the probate procedure. Please look at our article regarding wills.

If you elect to use a trust for your estate planning you will need to select a trustee. Many clients serve as trustee of their trust, at least initially. However, it is important for you to select a successor trustee to serve when you are no longer willing or able to serve as trustee. You will need a successor trustee to serve upon your death and it is better to have a successor you have nominated rather than have a successor appointed by the court.

How do you select a successor trustee? You select someone you trust. Appoint someone with a reasonable degree of financial sophistication, someone who will carry out the stated terms of the trust and someone who you know will serve.

Many people choose a family member as a successor. Often this is a surviving spouse or an adult child. Regardless of the relationship, choose someone capable of handling the job. Sometimes the surviving spouse is very capable of handling the financial affairs. Other times, the surviving spouse is not the one who handled the finances during the joint lifetime and either because of age or lack of experience, is not well suited for the task. If a child is selected, in some situations, this could cause friction among siblings if all are not named. If all are named, the process may become cumbersome.

There are alternatives to selecting a family member. One is selecting a trusted friend or business associate who you feel has the qualities discussed above. Another alternative is choosing a private professional fiduciary. A private professional fiduciary is a person registered with the State of California. The professional fiduciary is bonded and has passed an examination testing their knowledge of the laws regarding trusts. One of the advantages of the professional fiduciary is that he or she is an independent person knowledgeable about trust administration. A professional fiduciary will charge for their services which will be an expense incurred by the estate that might not be incurred with a family member as trustee. Our office works with several private professional fiduciaries and can recommend one to you if you wish to consider that possibility.

The selection of a trustee should be carefully considered. When we meet to discuss your estate plan, we can discuss this process with you.

Many people agree to administer a trust without having the slightest idea of what it entails. Most believe it to be a simple matter of distributing the trust assets, but it involves much more. A trustee assumes a fiduciary relationship with the beneficiaries of a trust and, as discussed under the article “A Trustee’s Fiduciary Responsibility,” there is an extensive array of legal duties and obligations imposed on a trustee. As a general rule, administering a trust is a fairly formal process in which the trustee must undertake the distribution the trust assets without the benefit of court guidance. If the trustee ignores the rules of fiduciary responsibility, the trustee may subject the trust to loss and damage, and sometimes may incur personal liability.

In administration, the trustee must take control of the trust assets, including real and personal property, and various financial and investment accounts. Properties must be managed. Management may be directed by the trust, but if the trust is silent, laws in California govern the management of a trust. Notices should be given including a notice to beneficiaries and heirs, and a separate notice to creditors.

During the administration of a trust, the trustee has a duty to keep beneficiaries informed about the administration. The trustee should keep detailed records of all assets in the trust, all income received, and all expenses of the trust. A trustee has an obligation to see that all tax returns required are filed and all taxes are paid. A trustee should consult a professional such as an accountant or an attorney during the administration of the trust.

This is only an outline of the responsibilities of a trustee. Our office has prepared a guide for trustees to use in administering a trust. We work closely with our trustee clients to assist them in administering the trust in a proper and efficient way. We look forward to working with you.

Many people feel honored to be asked to serve as a trustee of a trust without realizing the responsibility it entails. A trustee has a legal relationship with the beneficiaries of a trust. This legal relationship imposes many duties and obligations on the trustee.

Among these duties are the duty:

A trustee must take care to avoid co-mingling the assets of the trust with the trustee’s own assets. A trustee must be prepared to report to the beneficiaries to keep them informed of the trust’s activities and a trustee generally will have a duty to account to the beneficiaries for the assets, the income, and the expenses of the trust.

These are just a few of the many legal duties and obligations imposed on a trustee. We have prepared a guide for trustees to aid them in undertaking the administration of a trust. When we meet with clients that will administer a trust, we strive to explain the duties of a trustee and to guide them through the process of administering a trust.

Unfortunately, disputes involving wills and trusts cannot always be settled without some form of intervention. This is because emotions run high. The matters often involve disputes among family members. Sometimes, one member of the family believes that another family member has been wrongfully favored, or one family member has abused the trust placed in that person by other family members. Another common dispute occurs when the family believes that a trustee, whether a family member or not, is not performing its duties under the terms of the trust or is abusing its power as trustee. Disputes often arise when blended families are involved and the beneficiaries are children of different parents.

Occasionally, people who make wills or trusts to dispose of their property are not forthright during their lifetime with their beneficiaries, creating unmet expectations regarding what one’s inheritance will be. As a general rule, people may leave their estate as they wish. They do not have to leave their estate to their children or other close relatives. Some people however, particularly the elderly and infirm, are susceptible to being unduly influenced to leave their estate to someone who is not the true object of their affections.

We have represented clients in numerous matters involving all aspects of trust and estate disputes. There is a cliché among sportscasters that ‘everyday when you come to the game, you may see something you have never seen before.’ That cliché holds true in trust and estate disputes. Because of the family associations, the actions of the decedent during his or her lifetime, or changed circumstances not contemplated, each dispute is unique. We strive to recognize that uniqueness, to deal with our clients in an understanding manner, and to use every effort we can to obtain the best possible result for them.

Our office, in Marin County, California, represents clients regarding many aspects of real property. These matters involve both commercial and residential properties. Our clients range from real estate brokers and agents, to individuals and privately held businesses.

The work we do with real property includes both transactional work, negotiation, and litigation where there are disputes. Transactional work includes drafting and reviewing agreements for the purchase and sale of real property and leases. We also draft deeds and assist in transferring property, taking advantage of tax savings devices where possible. We advise clients regarding easements and other issues regarding the usage of land. Our concentration on this area of law is very beneficial to us in assisting our clients with the settlement of estates involving real property and in their everyday transactions involving their homes and real property investments.

Over the years, our firm also litigated many matters for our clients. Although we sometimes find that matters must be litigated to protect our client’s rights, we are mindful of the expense and uncertainty of litigation, and we strive to resolve matters without having to file litigation and prepare for trial. This does not mean we are not aggressive in representing our clients, but only that we attempt to balance aggressiveness and reason to obtain the best result for our clients.

We have represented clients in a broad range of matters. Recently these include encroachment by one owner on the land of another, easement issues, and failure to disclose defects in property structures. Cases have involved breach of purchase and sale contracts, construction defects, breach of lease, and questions of title and ownership. We have experience as counsel for both plaintiffs and defendants.

When we meet with you, we will discuss your matter and apply our knowledge and experience to your situation. This will enable us to give you the best possible advice and to assist you in obtaining the most favorable outcome.