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Should I Appoint My CA Estate Planning Attorney as Trustee?

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Let's imagine you're making your California estate plan. Your estate planning attorney will help direct you in planning for the disposition of your assets by Will, Trust or nonprobate transfers (401k, IRA, Paid On Death (POD) accounts, Transfer on Death (TOD) Deeds, Joint Tenancy and Community Property Deeds, and a number of other planning devices). Experienced Northern California (Sacramento, Oakland, Santa Rosa, San Francisco, Roseville) probate litigators will ask you - are you considering a living trust? Do you know what a living or inter vivos trust is? Have you considered who is going to serve as the trustee?

Wills and Trusts

• Wills have to go through the probate divisions of California Superior Courts - a process which can be time consuming and expensive.

• More and more California residents are choosing to go another way - living trusts.

• Living trusts can serve as a great and effective Will substitute. Pour Over Wills may also be a part of Trust and estate planning. These Pour Over Wills provide that any assets not already in the Trust go to the Trust at the death of the Trust maker (Trustor, Settlor).

• Do you know how?

• After you set up a trust, what next?

• You will need to appoint a Trustee. You will likely be the Trustee during your lifetime.

• Who will be your successor Trustee - at your death or incapacity?

• Who do you trust more than anyone else?

• Likely a family member, financial advisor, CPA or attorney?

• So is picking your attorney to serve as a Trustee a good idea?

Do You Want To Appoint Your Attorney As Trustee?

• Appointing your Northern California probate and estate planning lawyer as your Trust's trustee can be complicated.

• Your lawyer owes you a fiduciary duty.

• A Trustee owes all beneficiaries a duty.

• These duties may conflict.

• And what happens if there is a conflict?

• Your lawyer should review these potential conflicts and discuss them with you before you make an appointment of a trustee.

• You may find that appointing your own personal attorney may not be a good idea.

• What are some other options?

Professional Fiduciaries

• The California Professional Fiduciaries Bureau was formed by law in 2007 to regulate non-family member professional fiduciaries, including conservators, guardians, trustees, and agents under durable power of attorney.

• If you decide to not appoint a family member as a Trustee, you could interview a professional fiduciary or seek the advice of your estate planning lawyer as to qualified professional fiduciaries.

• There are also many Northern California banks that serve as professional Trustees.

At Hackard Law we manage estate planning and the appointment of trustees on a regular basis. There's nothing more important to us than protecting our client's interests and ensuring their estate is secure. Call us today at 916-313-3030.

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