Protect Your Family. Protect Your Legacy.
California Estate Planning Law Practice focused on Trusts, Probate, Asset Protection, and Will Contests
The Sowards Law Firm is a boutique Silicon Valley law firm focused on Estate Planning, Wills, Trusts, Asset Protection, Estate Administration, and Business Law. The members of our firm have been helping California families for over 25 years.
You deserve to have a personal relationship with your attorney. Your San Jose estate planning lawyer should know about your family and your estate. California attorney Benjamin J. Sowards leads the team of professionals at the Sowards Law Firm. We offer a free consultation via telephone for all new matters.
Avoid costly mistakes. Get the peace of mind that you deserve. Work with a licensed California attorney from the start so that you do things right -the first time.
- We are located in the heart of Silicon Valley
- Free Consultations by telephone (call (408) 371-6000)
- We make house calls (on-site visits at your location)
Benefit From Confidential & Protected Communications
The Attorney-Client relationship is one of the most important business relationships that you will develop throughout your life. Our clients trust that their communications with our firm are confidential and protected. We don’t judge our clients, we protect them. Don’t trust your legal matter to “legal software” or legal websites that provide “self-help at your specific direction.” We are California estate planning attorneys with a proven track record and the legal training to understand and solve your most difficult legal challenges.
Be sure to take your time when hiring an attorney. Make sure your attorney has the knowledge that you need to solve your legal matter.
San Jose Estate Planning Lawyers Serving Clients in Silicon Valley and Beyond
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 formation and litigation.
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.
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:
California Probate Code at Sections 16000-16504 – Trustee Duties
| TABLE OF TRUSTEE DUTIES | ||
|---|---|---|
| DUTY | PROBATE CODE SECTION | BRIEF DESCRIPTION |
| Duty to administer trust | §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.
We currently make home calls in Santa Cruz and Monterey County for a minimal fee.
