Lorenz Private Trustees Blog

If you don’t create an estate plan, you could be placing yourself at the mercy of the court. What is Guardianship and Conservatorship? California uses the word Conservatorship, and the rest of the USA uses the term Guardianship. This is the court procedure by which the rights of the individual (Ward or Conservatee) are transferred to another (Fiduciary) to protect the conservatee from themselves and others. Once conserved, many conservatees can no longer enter into contract, vote, marry, manage their own funds, or make their own medical decisions. Conservatorship happens when there is no plan, or the plan has failed, and the individual has become very vulnerable, very uncooperative, or both. The court proceeding can be brought by any interested party, usually family members.

In California, there is no way to conduct a conservatorship without the conservatee being informed or given notice. Conservatees and Conservators are represented by attorneys. Investigation is conducted by court appointed parties such as a Guardian Ad Litem (an attorney appointed by the court to advocate for the proposed conservatee and report to the court) or a court appointed investigator. This way the court gets a direct report as to the condition of the conservatee, and the conservatee’s situation. The process can take months, and once finalized, the Conservator has to report to the court on a regular basis; accountings, requests for the court’s permission (like to sell the family home), and in this way the court supervises the conservator’s work.

Conservatorship is a public procedure where the question of whether or not a person can manage on their own is debated. If you create an estate plan and nominate someone to serve if a conservatorship is needed, that at least allows you to select someone you know and trust. If you select a professional to serve you, rather than a family member or friend, you benefit from the professional’s experience and resources, as most family and friends have never done this kind of work before. Please take some time to get acquainted with the professional(s) you select. Allow the professional to receive a copy of your estate plan documents, and be willing to provide additional information, so your selected person knows where you bank, who you do business with, and what you like. For more information, read “Who Needs a Professional Fiduciary?”

Marguerite Lorenz, CTFA, CLPF is a Master Trustee and a Managing Partner at Lorenz Private Trustees (MyTrustee.net) and has served as a Trustee and Executor since 2003.

Think of Sovereignty as Individual Agency. From Wikipedia – Individual agency is when a person acts on his/her own behalf. Each of us is our own Decision Maker, and every contract, every choice, is an exercise of our personal power. If we don’t plan ahead, in writing, we can unknowingly give away every bit of our power. A good estate plan lays out our wishes, and designates a chosen person to carry out those wishes.

Each of us is sovereign, with rights and obligations. This concept is so important, and no matter who you select to serve you when the time comes, you are trusting that person with “everything”. Think about your own “agency”, your own personal power to decide any question about tax, legal, financial, social, or medical matters. Do you make these decisions with a partner or spouse? Is there anyone you trust that much as to let them decide, without consulting you?

What do you expect for your own time of vulnerability? Fewer than 1/3 of Americans have a written estate plan, and many people are shocked when they are no longer able to do the things they have always done. Waiting for a crisis is poor strategy. We are all better off planning for vulnerability, such as incapacity or physical inability, rather than ignore the fact it could happen to any of us, at any time. The power of your estate plan is based on the expression of your preferences (because we can’t predict the future), and granting authority to someone to uphold those preferences for you, when you can no longer do so yourself. Learn more by reading Ethics for Trustees 2.0

Marguerite Lorenz, CTFA, CLPF is a Master Trustee and a Managing Partner at Lorenz Private Trustees (MyTrustee.net) and has served as a Trustee and Executor since 2003.

You have to plan ahead to stay the “Boss”.

Your person (your Fiduciary), has many duties in regard to how they serve you. Professional Fiduciaries are typically held to a higher standard than a family member or friend because, in California, these professionals are licensed by the Department of Consumer Affairs, Professional Fiduciaries Bureau. There is a well-established Code of Ethics, and many laws governing the work of Fiduciaries. If you feel that your family member can avoid conflicts of interest, and put your needs before their own, you may still want them to read, Ethics for Trustees 2.0 to give them a better sense of what is expected.

With your well drafted estate plan, you remain the boss through your incapacity, and death, as the Trustor of your Trust. Your Fiduciary has a duty to follow the instructions you have put into your estate plan. There are challenges when certain circumstances change, and thereby the care you need changes. Here is an example to help you and your chosen Fiduciary understand some of the control issues to consider.

When Dotty was 80, her husband died. She met with a new attorney and restated her trust, along with updating the rest of her estate plan documents (Will, Durable Power of Attorney, and Advance Health Care Directive). All of her assets were properly titled. She worked with the same CPA for many years, and she did a good job of managing her trust. She made a lot of decisions when she updated her documents including how and when her future Trustee would communicate with “nosy” family members (some, she said, couldn’t wait for her to die so they could get her money). Dotty spent a lot of time detailing medical treatments she would, and would not, accept. It took her about 6 months to complete her update.

When Dotty was 95 years old, she fell in her driveway, and her neighbor called her emergency contact (In the past, Dotty made sure that her Fiduciary’s phone number was easy to find). After an ambulance ride to the hospital to make sure she was ok, the hospital doctor found Dotty to be very confused. The doctor wanted to be sure that Dotty understood the consequences of any procedures or tests they would conduct at the hospital, so he ordered a psychiatric consult for Dotty. The psychiatrist found that Dotty did not have sufficient capacity to understand, and contacted her Agent for Health Care (the same Fiduciary). The Agent asked for letters of incapacity from two doctors because Dotty’s Agent and Trustee had no authority to act without such letters. Both the hospital doctor and the psychiatrist provided the letters.

Dotty had been in the hospital for three days, when she was cleared to go home. The Fiduciary hired a geriatric care manager (GCM) for Dotty, who proceeded to get to know Dotty’s medical history, medications, and symptoms. When she came in to the emergency room, Dotty had no broken bones, but she was malnourished and dehydrated. We learned that she would forget to eat, or drink water. Food shopping alone had become difficult.

Dotty returned home, and caregivers were hired to be with Dotty 24/7. For the first few days, Dotty was surprised every time she saw the caregiver. The Fiduciary and the GCM visited and explained that Dotty could not be safe alone at home, and asked Dotty to be patient with getting used to being cared for. Dotty qualified for hospice care, and the hospice nurse visited every week.

Over the following weeks, Dotty got angry about being “too old to manage my own life”, and “having too many people around” (caregivers were working in shifts, and Dotty would forget names). The Fiduciary had collected Dotty’s paperwork (checkbooks, statements, past tax returns, etc.) from her home and explained that all would be scanned and organized as part of the Fiduciary’s job. Dotty demanded that all of her paperwork be returned to her as soon as possible, as she felt she had lost control. All of the originals were returned to Dotty, who “filed” and re-filed the paperwork, growing more and more confused and agitated.

Dotty called her neighbor to complain that the Fiduciary had invaded her privacy and “stole” her paperwork. The neighbor became alarmed, and even though the Fiduciary explained, and shared documentation, showing that he had proper legal authority, the neighbor contacted Adult Protective Services (APS). The Fiduciary welcomed the APS investigation into the matter. APS reported that the Fiduciary was doing a good job, and Dotty was safe. The neighbor continued to view the Fiduciary with suspicion, believing that Dotty had full capacity, and that the doctors who examined her were wrong.

When Dotty died, the Fiduciary arranged to have the locks on the house changed, and once again retrieved all of the important papers from the home. The neighbor was hostile, which unfortunately sometimes comes with misunderstandings around Fiduciary work. All of the beneficiaries received Notice (see California Probate Code 16061.7), proper accountings and distributions were delivered, and the estate settlement was completed.

I have had clients who warmly accepted assistance, and I have had clients who knew they needed the help, but refused it. It is hard to know in advance what you will need, and how willing you will be to receive it. The most important thing to know about estate planning is that it is the most effective way to get your preferences laid out in a way where you, and your wishes, can be respected. Please share this awareness because too few people plan ahead. Thanks.

Marguerite Lorenz, CTFA, CLPF is a Master Trustee and a Managing Partner at Lorenz Private Trustees (MyTrustee.net) and has served as a Trustee and Executor since 2003.

None of us know when we may become incapacitated, or die, but we do know that death is coming for us all, eventually. This is just one reason to plan ahead. There is another great reason to get your preferences clearly stated in writing; incapacity happens to many of us once we reach a certain age.

As San Diego Judge Julia Kelety said recently, “Capacity is a moving target”, and incapacity can be caused temporarily by dehydration, or infection, or permanently by damage to your brain. Whether incapacity is temporary or permanent, the incapacitated individual doesn’t know they are incapacitated. This means that you could become incapacitated and not know the extent to which your judgement and ability to process new information are compromised.

Your estate plan is a tool with many purposes the primary of which is for you to stay in control when the challenges of life come. If you don’t explore the “what ifs”, and get your preferences into writing [What if I am incapacitated and can no longer pay my own bills, or do my own grocery shopping?], then you might find yourself being managed and protected by a court procedure called “Conservatorship” (this is called Guardianship in every state except California).

You may have heard about Britney Spears and her Conservatorship. Her father served as her Conservator for many years, and recently, after a lot of pressure, he stepped down. At this writing, I believe her Conservatorship has been terminated. How does anyone get “Conserved” in the first place? They exhibit self-destructive behavior resulting in being a danger to themselves or others, or they have become uncooperative and extremely vulnerable.

We all have the right to pursue happiness, even if that means gambling all of it away, or giving away your funds to new friends. When you are a danger to yourself and others, or you are particularly vulnerable, someone in your life may approach the court and ask that a Conservatorship be set up to protect you.

As an example, a young person, disabled since birth, may have parents who wish to continue caring for him after he turns 18. These parents then hire an attorney and petition the court to be the Conservators for their son. Conservatorship is a complex process, including an investigation by the court, and an appointment of a Guardian Ad Litem (a court appointed attorney for the purpose of advocating for the disabled son) who will look into the best interest of the son. It can take months, or years for such a Conservatorship to be established, and then the financial and medical life of the Conservatee (the son in this example) may be court supervised for decades. There is much more to know and understand about Conservatorship, which this blog post will not cover.

For someone who is able (competent, has capacity, in their right mind, etc.), planning ahead can prevent Conservatorship. If you have created an estate plan (please work with a qualified estate planning attorney), you will have selected the person(s) who will be responsible for you when you can no longer be responsible for yourself. Not only will this person be personally liable for making sure all your bills get paid, they will also be responsible for accounting for all you have and where it goes. This responsibility extends to how they communicate with your beneficiaries, and tax, legal, financial, and perhaps, medical, professionals. This person will have certain duties based on what your estate planning documents say and what is in the law. You can learn more by reading Ethics for Trustees 2.0.

You may assume that a family member, or friend, will just step in to do this work for you, but they still need legal authority either granted by you through your estate plan documents, or through the Probate Court. Getting an estate plan is much less costly than a Probate procedure, and you have the advantage of keeping your affairs private. Hopefully, you’ll avoid being Conserved, too.

Marguerite Lorenz, CTFA, CLPF is a Master Trustee and a Managing Partner at Lorenz Private Trustees (MyTrustee.net) and has served as a Trustee and Executor since 2003.

Yes, assets can be lost if they are not properly documented.

There is a great opportunity to inventory what you own as you go through the estate planning process. Your attorney is your guide, and the architect, but you are the Trustor – the decision maker. It is so important to share, with your attorney, the information about ALL of your assets, and ALL of your intentions. Then, from time to time, as you update your estate plan, you can update your asset list. We recommend that you discuss “how” to get your assets titled correctly, and keeping track of what you have, with your attorney.

When the time comes for your successor Trustee to step up and do the job, you may not be able to update your list yourself, as you may be incapacitated or dead. As an example, you may have a life insurance policy from a previous employer, which you never added to your asset list. There is no way for your successor to find it, as there is no central registry to check. This policy is not unclaimed property, and you have no documentation in your home for your successor to find. This is why you are encouraged to start now. Consider the jewelry you own, anything in your safe deposit box, and anything you feel has value, especially any cryptocurrency you may have.

Starting now, you can password protect an electronic spreadsheet (don’t forget to write down the password…) and start with your vehicle, your home, and any personal property assets you are concerned about. Here are some sample column headers and descriptions:

If you don’t yet have an estate plan, please consider making the appointment with the attorney for next month, then start working on your list. If you already have an estate plan, ask your attorney about the best way to keep your personal property list in relation to how your document has been written. It is good practice to bring current financial statements to your attorney, along with your list

Marguerite Lorenz, CTFA, CLPF is a Master Trustee and a Managing Partner at Lorenz Private Trustees (MyTrustee.net) and has served as a Trustee and Executor since 2003.

If you are a beneficiary of a trust, you have likely experienced some challenges in communicating with your trustee. There are limits to what your Trustee can do, or say, however it is always reasonable to expect courtesy and prompt responses (even if the answer is “No”).

What happens if you really wish you had a different trustee? Here are some suggestions to discuss with your attorney as you seek a replacement:

Know why you want to replace the trustee – Whether a corporate trustee, or a family member trustee, you may not “like” them, but they might very well be doing a decent job. If you are receiving accountings as mandated by the trust, and you are receiving your distributions as expected, consider the time frame of the remaining trust administration, before seeking a change.  We recommend asking for what you want (emails rather than letters, or virtual meetings instead of no meetings, etc.) before embarking on change.

If there is not too long to wait until the administration is complete, changing trustees might only cause expense, without desirable results. For instance, the estate is being settled, you have received most of your funds, and now it is just a matter of getting tax clearance, so there may not be a need to make any changes. If you are the beneficiary for long term trust, such as for your lifetime, then a change might be quite worth the time and expense.

Selecting a replacement – What is it about the current trustee that makes you unhappy? This list is going to be very helpful in your interview process. Are there other beneficiaries who need to agree to any changes? What are the provisions in the trust which allow a change in trustees, and do you have the power to make this change? With the answers to these questions, your attorney can help you identify some replacements, and hopefully, you and your fellow beneficiaries can all agree to the new trustee.

Informing the current trustee – Very often, the trust document will have language describing the process of changing trustees. It is reasonable to allow the current trustee to close out their work, before granting authority to the new trustee. Sometimes, a court order will be required. You may want the current trustee to account for all of the expenses and income, maybe even finish a tax return filing, so that the transition makes sense. As anxious as you may be to make a change, there is no need to incur additional expense by rushing the process. Sometimes this “hand off” process can take a couple of months, or much longer, depending on the nature of the assets and issues involved.

No matter the specifics of your situation, we strongly recommend consulting with an estate planning attorney who is familiar with trust administration. This way you will have an advocate who can help you understand what to expect as the change is initiated and completed.

Marguerite Lorenz, CTFA, CLPF is a Master Trustee and a Managing Partner at Lorenz Private Trustees (MyTrustee.net) and has served as a Trustee and Executor since 2003.

How do you think your kids will get along once you are out of the picture? Ok, I hear you saying that your kids all like each other, and Thanksgivings are always fun. Keep in mind, that when “the time comes” things may be very different for your adult children.

If you have one child living with you, to “help out”, this arrangement may already be testing the boundaries of their sibling relationships. If you have loaned or given money to some, but not all, of your children, there could be hard feelings when your checkbook is managed by one of those same adult kids. Maybe you have given money to all of your children, and you have been as fair as possible, there may still be underlying conflict the kids don’t tell you about.

Your children, who are also your beneficiaries, have a natural conflict of interest when they are managing your money for your benefit, and they are aware that they will be inheriting what is left. Your kids may be able to work well together, or they may fight, but you just don’t know how this will play in terms of your needs being met. The kids themselves might get along great, but their spouses may not be willing to let go of old grudges. Whatever you know about your family, please share your family quirks and challenges with your estate planning attorney.

Estate planning is not about predicting the future, as much as it is about setting down your preferences, and designing a plan which can weather emotional storms. If you decide to name family members to serve you, please give them a chance at being successful by suggesting they study up on the job. We offer “Ethics for Trustees 2.0” as a great starting point.

Marguerite Lorenz, CTFA, CLPF is a Master Trustee and a Managing Partner at Lorenz Private Trustees (MyTrustee.net) and has served as a Trustee and Executor since 2003.

The three triggering events in the typical estate plan are:

Incapacity – Your documents might say two physicians are to examine you, and if they determine that you have lost capacity to manage your own affairs, they will each write a letter saying so.

Resignation – You sign a resignation letter, prepared by your attorney, which gives your consent to have your successor serve.

Death – A Death Certificate is prepared when you die as written proof you can no longer serve as your own fiduciary. Administering your trust is not a “Do It Yourself” project!

Notice that each triggering event has a writing which is relied upon by third parties such as financial institutions, banks, escrow companies, etc. Your successor must have this clear permission in order to do the work for which you have granted authority in your estate plan. Your successor (trustee, executor, or agent) will need to share their personal identifying information (ID, Social Security Number, home address, mother’s maiden name, and more) along with your estate planning documents, and the triggering event documentation (doctors’ letters, resignation letter, or death certificate) in order to access your properly titled assets. For more on titling your assets, see What is Your Trust Made of?

This is one of the main reasons to have an estate plan: to select persons to serve you when you can no longer manage on your own. Sometimes, the service is temporary. I had a client whose wife had died of cancer, then he found out that he had cancer. He thought he could manage just fine until one round of chemo had him hospitalized. He talked with his attorney, decided to resign as trustee, and then he granted immediate power to me also as his Agent on his Durable Power of Attorney, and as his Agent for Health Care Decisions.

With his resignation letter, I “marshaled” his assets. This means that I gained signing authority on all of his accounts with all of his financial institutions. I accounted for everything I found, and all transactions thereafter. Six months into my work, he had met a nice woman, and he was feeling better. He asked me to step down so he could resume managing his own affairs. He had capacity, so I promptly signed a resignation letter (prepared by my attorney) and provided the client with an updated financial report. He took my resignation letter to the very same financial institutions, and established his authority again on those same accounts.

Less than two years later (and after a world cruise), he died, and I became trustee again, utilizing his death certificate to marshal his assets.

You are better off naming someone to serve you when the time comes, and have proper estate planning documents, rather than adding someone as a signer on your bank account “just in case”.

Embrace the end of life as a time to relax. We do this by selecting someone we trust to do the right thing, for the right reasons. We have to name our selected persons in our documents and grant them the power to put our needs before their own. If family is not a fit, that’s ok. Please talk with your attorney about your concerns, and your alternatives.

Marguerite Lorenz, CTFA, CLPF is a Master Trustee and a Managing Partner at Lorenz Private Trustees (MyTrustee.net) and has served as a Trustee and Executor since 2003.

We are talking about your estate plan. The details of how personal property gets handled, how funds are disbursed, and how much you give to your beneficiaries, are completely up to you as Trustor (Creator, Settlor, Grantor) of your trust. You can change your mind several times throughout your life, as long as you have capacity, and you make proper amendments or restatements as guided by your attorney.

When I got my plan written the first time, my children were too young to care for themselves. I updated the documents again when the youngest turned 18. I have kept my attorney updated as I purchased, and then sold, my home. When I remarried, we updated our documents together. Here is a short list of some of the events which should trigger an update:

Births, Deaths, Divorces, Marriages, Major Purchases, Major Sales, Retirement, Moving to another State

I also suggest reaching out to your attorney from time to time as Trusts and Estates Law changes now and again. If you are between 40 and 70 and in good health, consider reaching out to your attorney every five years, whether or not any triggering events have occurred. Keeping a good relationship is very helpful. When you are over 70, perhaps reaching out every three years, makes sense.

Throughout all of my estate plan updates, my children were made aware that I have a plan so they won’t be burdened, and that I keep it up to date. They know that funds will be held in trust. They don’t know how much, and of course, none of us know when. I want my children to thrive as best they can, with a little help and love from me during my lifetime. If I ended up spending their inheritance on my health care, they will not be disappointed with how much, or how little, they receive.

I hope every beneficiary understands that “if” they inherit, it is a gift. Expecting to inherit, being entitled, or waiting to live until such inheritance comes through are just a waste of good living.

It’s your money and you get to decide what happens to it while you live, and after you have died (if you have a written plan).

If you are looking for an estate planning attorney, please read: How to Find the Right Estate Planning Attorney for You – for those who have the estate planning attorney they feel understands their needs, and provides great service, here are few tips to keep that relationship running smoothly.

Periodic Updates – Keeping your estate plan up to date is part of your job as the Trustor (Creator, Settlor, Grantor of the trust). You do this by managing the “funding” of your trust when you acquire new assets, or when you sell assets. You may choose to email your attorney (and your successor trustee) an updated list of titled assets once a year; you can then ask your attorney to consider any law changes that may affect the administration of your trust.

We recommend talking with your estate planning attorney about the best ways to keep each other up to date. After all, the attorney may have life changes which could affect the service you receive.

Meet the Successor – Since no one lives forever, it makes sense that your attorney will retire, or be permanently unavailable, some day. Ask your attorney, “What is your succession plan?”. If you like the way your attorney does certain things (nice appointment reminders, willing to meet in-person or virtually, listens well…), then ask the successor to do more of the same, when the time comes. Perhaps your attorney does not yet have a succession plan, so you may be the rare client who encourages such a plan to be developed. This benefits you both!

Pay the bill with a smile – When you find the right professional in any field, and the price is right, paying the bill in timely fashion shows your kindness and respect. For many good professionals, the billing process is their least favorite part of the job, so not requiring a bunch of reminders makes you a “good” client. Once a practice gets busy with lots of good clients, unwilling, or unkind, clients are often let go.

For my very first estate plan, I did not have much in the way of cash, so I asked the attorney if she would accept monthly payments. We agreed on a payment plan, and I made sure that I made every payment on time. This professional relationship grew over time, and I’m so grateful. Additional tip: If you have identified great professionals with whom you love working, introduce them to each other!