Choosing a Trustee

A Successor Trustee should be exactly that – someone who will take over management of your Trust should you ever need and definitely someone whom you trust. When considering who you might want to choose, there are both practical and emotional considerations.

The practical considerations are easier to think about in terms of what this person does not need to be. They don’t need to be an expert in investing – financial advisors can be hired. They need not be an accounting or real estate expert as dedicated accountants and real estate professionals often have better advice. A Successor Trustee should be smart enough to ask for help and willing to take on the responsibility of oversight and decision making.

Trustees have a “fiduciary responsibility” which means that they should demonstrate a high level of attention and care or they could be personally liable for harm caused. For instance, a Trustee who does not have a method for recording income and expenses will be presumed to “have lost” monies if unaccounted for. Beneficiaries of a trust can bring a claim for mismanagement or breach of duty.

Many trusts will have clauses that exonerate trustees from general liabilities, for instance if the market has a major decline and the portfolio value decreases. But inadvertent neglect, such as not consulting with a financial advisor or keeping track of income and expenses could lead to potential liability.

A Trustee should be of an age and energy level to take on the tasks and duties necessary to effectuate the terms of the trust. The administration of a trust after one’s death is usually a finite process (unless ongoing sub trusts will be funded and maintained long term). The administration of a trust during the trustor’s incapacity, especially if long term, can be challenging and time consuming. Often it is hard to predict in advance what role a Successor Trustee will play, and for how long they will be needed. Having more than one Successor Trustee named in the document allows for flexibility in the event that unanticipated needs arise – whether for the Trustor or the named Trustees.

Trustees may be paid from the trust assets and even though many start by saying they don’t want to take fees, we do recommend that Trustees keep track of their time and expenses. Fees earned by a Trustee are taxable income. Trustees who are also beneficiaries in the trust receive their gift inheritance income tax free but they do pay income taxes on fees earned. None the less, Trustees can choose to accept or decline fees. Each case differs and these are examples of issues which we can advise the Successor Trustees.

No matter who is hired as a Successor Trustee, they should realize they are not expected or required to do everything on their own. They can hire, delegate, consult, and/or resign should they choose. Being clear with a Successor Trustee that they can get help or delegate is often useful information and makes both the grantor and the Trustee feel better. We can provide resources to help Trustees fulfill their duties and meet their obligations, reducing their liability and helping them to be more efficient. If you would like to consult with an attorney at Johnston, Kinney & Zulaica LLP on any of these issues or estate planning in general, please call 415.693.0550 or email us for an appointment.

Transferring Royalties and Copyrights at Death

There are many reasons to set up a trust rather than a will.  In California, trusts are often set up to avoid the costs and delays probate, which is the court supervised administration of an estate.  However, your trust must be “funded” in order to avoid probate or additional court petitions to move assets into your trust after you have died.  This means that the assets you can take title to should all be in the name of the trust.

When letting your estate planner know about real property, investment and other bank accounts, business interests etc., don’t forget to also let them know about your less traditional assets.  For example, copyrights and assignment of royalties are both assets that can be transferred into your trust during life and then more easily transferred to your designated beneficiaries after your death.

An assignment of copyright to your trust should be registered during life with the U.S. Copyright Office and also sent to your publisher to ensure your chosen beneficiary or agent will be able to grant permissions and licensing rights and collect the income after your death.  Assignments of your royalties should be filed with your publisher so that any fees generated are paid to your trust and ultimately can be transferred to your chosen beneficiary(ies) after your death.

Certain professional organization such as ASCAP have additional requirements that must be satisfied to properly ensure that the fruits of your labors get to your chosen beneficiaries.

Please give us a call if you wish to do estate planning or need to probate or transfer these kinds of assets.


Why Does Each Party Need an Attorney in Pre-marital Agreements?

By Joseph L. Urbanski

Clients who request our services for a pre-marital or post-marital agreement often do not fully understand the importance of attorney involvement.  They acknowledge that an attorney may present issues not yet considered, but they often discover that there are myriad issues that can be negotiated and others which cannot.  What many clients do not understand is the importance of independent counsel for each other.  The role of independent counsel for each party, beyond educating and advocating for the client, is to ensure that undue influence was not a factor in executing the agreement and that the agreement will hold if ever necessary.

A premarital (or prenuptial or pre-registration) agreement is a contract executed between prospective spouses or partners in contemplation of marriage, and the agreement becomes effective as of the date of marriage.  A marital, or post-nuptial, agreement is a contract executed by couples who are currently married or partnered, which affects marital rights and obligations incident to their marriage.  Of course, most people who enter into these agreements have no intention of “unduly influencing” their spouse or partner.  However, even the slightest bit of pressure on the party who is being asked to sign can draw inferences of undue influence.  While there are provisions that can be added to the agreement to protect against claims of undue influence, the guidance of independent counsel for each party also helps to ensure that both parties executed the agreement of their own free will and without duress; and is one of the most effective ways to have the agreement enforced if ever needed.

The fact that a party executed an agreement without the benefit of an attorney’s guidance is not in itself conclusive of undue influence nor is it grounds to automatically set the agreement aside under normal contract law.  However, under the California Family Code, a premarital agreement is deemed to be involuntary and unenforceable against someone who did not have an attorney unless that person waived representation in writing and was fully informed in writing, of the terms and effect of the agreement upon that party. When it comes to spousal support limitations in a premarital agreement, they are per se unenforceable against a party that was not represented by independent counsel.

The same California Family Code provisions do not apply to marital agreements to invalidate the agreements based on lack of independent counsel.  However, if one spouse or partner gains an advantage over the other, the opportunity to obtain independent legal advice or having had independent counsel may be persuasive to overcome the presumption of undue influence.

The importance of independent counsel cannot be overstated in the context of premarital and marital agreements.  Counsel may help distill your rights, obligations, and avoid any inference of undue influence, so that you can enter into an agreement that is fair to the both parties and tailored to shared goals as a couple.