Protect Your Legacy.
Protect Your Legacy.
Protect Your Legacy.
Protect Your Legacy.
At the Sowards Law Firm, we have provided legal representation to families and businesses for more than 25 years. Based in the San Jose area, our estate planning attorneys can help you protect the future of your loved ones and ensure that your wishes are respected after your death or disability. We also can advise and represent you in matters related to trust administration and trust litigation, as well as business litigation. Our firm practices in the area of international business on behalf of clients around the world.Devising a Will or Trust
If you die without a will or trust in California, the laws of intestacy will determine to whom and how your property will be distributed. The first in line to inherit will be your spouse and children, and if there is no spouse or child, your grandchildren or parents will inherit. Estate planning allows you to have greater control over your assets and direct their distribution as you see fit. You may use a will to name an executor, leave your property to particular individuals or organizations, and name someone to take care of your kids and manage any property that you leave them. In order to finalize your will, you will need to sign the will in front of two independent witnesses, who also must sign it.
In order to avoid probate, a time consuming, expensive and public court proceeding, you may create a living trust, which is an arrangement whereby a trustee holds legal title to assets for the benefit of beneficiaries (usually your spouse or children). An estate worth $1 million dollars in California would cost $46,000 in fees to executives, attorneys and probate court. The person who makes the trust is known as the settlor. You may serve as the trustee (manager) of your living trust and keep control of the assets that are held in trust. You may name someone to succeed you upon your death (successor trustee) or have the assets distributed to beneficiaries upon your death.
Estate planning should also include creating a durable power of attorney. If you sign a durable power of attorney, you may designate a trusted friend (or agent) to handle your affairs in case of your disability or incapacitation. The durable power of attorney will allow your attorney in fact to pay your bills and taxes, handle your legal affairs and conduct other affairs on your behalf. You also need a similar document for health care decisions called an Advanced Health Care Directive. Our San Jose estate planning lawyers are familiar with crafting these instruments.Guidance in Trust Administration
When one or both settlors of a trust die, the terms of the trust must be administered (or followed exactly). It is almost always helpful for a trustee to work with an attorney to make sure that the trust is administered properly and that the assets are sufficiently protected. The successor trustee has personal liability if he/she fails to follow the terms of the trust and probate exactly. The start of trust administration involves providing a particular probate code notice to the beneficiaries of the trust within 60 days of the settlor's death, after which the recipients have 120 days to file a trust contest. The notice should include the settlor's identity, the date on which the trust was executed, the contact information for the trustees, the address of the principal place of trust administration in case the recipient wants to file a trust contest, and a notification that the recipient has a right to get a true and complete copy of the trust terms. However, most attorneys typically just attach a copy of the trust to the formal notice to expedite the process.Trust Litigation
Sometimes disputes arise regarding how a trust is administered. These may include claims that the settlor was not competent to make the trust, that undue influence was used on the settlor, and other claims of fraud, duress or mistake. A beneficiary may have problems with how the trust is being administered by a trustee. A petition to challenge the terms of a trust must be filed within 120 days from the time that the notice to file a case is received. More time is available if no notice was provided.
Among the duties owed by a trustee is the duty to avoid self-dealing, such as stealing from the trust. If a trustee is engaged in activities that help them and harm the beneficiary, this is a breach of fiduciary duty. The beneficiaries may sue the trustee for breach of fiduciary duty in order to recover damages. Trustees that engage in self-dealing may be removed from their position by bringing a petition to probate court.Business Litigation
Disputes may arise in the course of business even when both parties are operating in good faith. Some of the most common lawsuits are based on breach of contract claims. These claims may arise in many different situations, including disputes over purchase and sale agreements or differences in interpreting partnership agreements or operating agreement.
Ideally, an agreement should describe the roles of the parties the terms of the transaction, and which dispute resolution mechanism is available. If it is not possible to agree on the terms of the contract, or one party does not perform its duties under the contract, it may be necessary to litigate the matter. In order to recover damages for a breach of contract, a plaintiff will need to establish that they entered into a contract with the defendant, the plaintiff performed or substantially performed their end of the bargain or was excused from performance, the defendant failed to do something that it was required to do under the contract's terms, the plaintiff must show damages because of breach, and harm to the plaintiff resulted from the breach.
Trustees have many duties and obligations to beneficiaries when administering a trust. They owe a duty of fiduciary care, the highest standard of care, to the beneficiaries. They must place the beneficiaries' interests above their own. Trustees must avoid conflict of interest and have a duty of loyalty to the beneficiaries. Trustees have the following trustee duties:
|TABLE OF TRUSTEE DUTIES|
|DUTY||PROBATE CODE SECTION||BRIEF DESCRIPTION|
|Duty to administer trus||§16000||You have a duty to follow the terms of the trust and the law governing the administration of trusts.|
|Duty of loyalty||§16002||You have a duty to administer the trust solely for the benefit of the beneficiaries of the trust.|
|Duty to deal impartially with beneficiaries||§16003||You have a duty to not favor the interests of one beneficiary over another, except to the extent that the trust provides to the contrary.|
|Duty to avoid conflict of interest||§16004||You have a duty to avoid transactions with the trust that will benefit you personally.|
|Duty not to require beneficiary to relieve trustee of liability||§16004.5||You cannot require a beneficiary to waive their rights as a condition of distribution.|
|Duty not to undertake adverse trust||§16005||You may not act as trustee of any other trust that has a competing interest with this trust.|
|Duty to take control of and preserve trust property||§16006||You must marshal trust assets and take reasonable steps to preserve them.|
|Duty to make trust property productive||§16007||Subject to certain exceptions, you have a duty to make the trust assets profitable. The subject of trust investments is complicated, and we will discuss this area with you in detail.|
|Duty to keep trust property separate and identified||§16009||This is one of the most important duties you have. You have a duty to keep the assets and debts of the trust separate from your own. In other words, you should not commingle funds.|
|Duty to enforce claims||§16010||You must take reasonable actions to pursue amounts that may be owed to the trust.|
|Duty to defend actions||§16011||You have the duty to take actions to prevent a loss to the trust, such as by defending a lawsuit.|
|Duty not to delegate; exception||§16012||Subject to certain expectations, you must perform actions on behalf of the trust yourself rather than having others act on behalf of the trust.|
|Duty with respect to co-trustees||§16013||If you serve along with a co-trustee, you each have a duty to participate in the administration and prevent the other from committing a breach of the trust.|
|Duty to use special skills||§16014||In managing the trust property, you must use at least ordinary business ability. However, if you have special skills, you will be held to a higher standard of care.|
|Duty to provide information to beneficiaries||§§16060-16069||You have a number of duties related to providing financial and other information to beneficiaries (and in some cases, the settlor’s family members). We will discuss theses duties with you in detail.|
|Discretionary powers to be used reasonably||§§16080,16081||Even if the trust provides that a particular action is entirely within your discretion, you have a duty to act reasonably in exercising that discretion.|
If the trustee breaches any of these duties a judge may choose to remove the trustee from office and appoint a successor. You should only choose a trustee that will precisely follow the terms you set forth in your “family rule book” your living trust.Consult a Knowledgeable Estate Planning Lawyer in San Jose
When you are trying to protect your legacy, it may be crucial to consult a San Jose estate planning attorney. If you are looking for an experienced litigation attorney to fight for your objectives during a dispute, meanwhile, the Sowards Law Firm may be able to help. We represent clients in Campbell, Mountain View, Palo Alto, Santa Clara, Berkeley, Oakland, Concord, Walnut Creek, San Rafael, Salinas, San Mateo, Santa Cruz, and San Francisco, among other cities in Silicon Valley and elsewhere in the Bay Area. Call us at (408) 371-6000 or use our online form to set up an appointment.
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Tuesday, March 28, 2017 at 7:00 PM
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