can you be the attorney who writes the trust and the fuduciary

While a lawyer may simultaneously serve as fiduciary and attorney for the fiduciary, and be compensated in both capacities, the lawyer should not be compensated twice for the same work.

Full Answer

Can a lawyer be a fiduciary?

 · The trustee must keep accurate records, file tax returns, and report to the beneficiaries as laid out in the trust. Fiduciary Responsibility. A fiduciary is a person or organization that manages another person’s assets. By law, they must fulfill three elements of fiduciary duties involving a trust: Loyalty; Care; Full disclosure

Are You the Attorney for the trust?

 · Yes. Attorney who drafts trust may act as trustee. Not a conflict of interest. Some observations: Drafting attorney usually more familiar with the document. Trust company minimums may exceed assets in trust. Attorney may be more accessible.

Who is the client in a fiduciary trust case?

 · Technically, of course, you are not the attorney for the trust. Instead, you are the attorney for the trustee who is administering the trust. The “attorney for the trust” phrase, while inaccurate and misleading, is nonetheless heard and tolerated in practice. Experienced practitioners presumably think of “I’m the attorney for the trust” as an abbreviated way of …

Can an attorney represent a beneficiary and a trustee?

 · For instance, the drafting lawyer might be the best person to serve as the trustee in the client’s will or trust because the lawyer knows the terms of the will and trust better, probably, than anyone else, including the client. The lawyer’s legal and ethical training, and knowledge and expertise can provide added value to the client and particularly where you have …

Is the fiduciary of a trust the trustee?

The Fiduciary of a Trust is the Trustee, who is tasked with overseeing the management of property and assets within the Trust. Simply put, a Fiduciary is someone who acts on behalf of another person, often in a legal or financial capacity.

Can an attorney be a trustee in Florida?

Any person, including an attorney, who serves as a trustee is entitled to receive reasonable compensation for serving as trustee. 3. Compensation payable to the trustee is in addition to any attorney fees payable to the attorney or the attorney's firm for legal services rendered to the trustee.

Who holds the real power in a trust the trustee or the beneficiary?

A trust is a legal arrangement through which one person, called a "settlor" or "grantor," gives assets to another person (or an institution, such as a bank or law firm), called a "trustee." The trustee holds legal title to the assets for another person, called a "beneficiary." The rights of a trust beneficiary depend ...

Can a trustee represent himself?

Non-attorney trustees in California are permitted to represent themselves in court in California if they are not engaging in the unauthorized practice of law.

What is a reasonable fee for a trustee in Florida?

1% to 3%On average, trustee fees can range from 1% to 3% of the trust assets. For example, a 3% fee can be considered a reasonable fee for large and complex assets that can take years to administer.

Who can be a trustee of a trust in Florida?

In Florida, anyone who is at least 18 years old, mentally competent, and is not the sole beneficiary of the trust can be assigned to be a trustee. Unlike a personal representative, it is not required a trustee be a resident of Florida.

How much power does a trustee have over a trust?

The trustee has the power to acquire or dispose of property, for cash or on credit, at public or private sale, or by exchange. 16227. The trustee has the power to manage, control, divide, develop, improve, exchange, partition, change the character of, or abandon trust property or any interest therein.

Can a beneficiary withdraw money from a trust?

Part of creating a trust means naming a trustee who's responsible for overseeing the assets in the trust on behalf of your named beneficiaries. But can a trustee withdraw money from a trust? Yes, but there are rules they're required to follow.

Do beneficiaries pay taxes on trust distributions?

Beneficiaries of a trust typically pay taxes on the distributions they receive from the trust's income, rather than the trust itself paying the tax. However, such beneficiaries are not subject to taxes on distributions from the trust's principal.

What a trustee Cannot do?

The trustee cannot grant legitimate and reasonable requests from one beneficiary in a timely manner and deny or delay granting legitimate and reasonable requests from another beneficiary simply because the trustee does not particularly care for that beneficiary. Invest trust assets in a conservative manner.

Who owns the property in a trust?

The trusteeThe trustee is the legal owner of the property in trust, as fiduciary for the beneficiary or beneficiaries who is/are the equitable owner(s) of the trust property. Trustees thus have a fiduciary duty to manage the trust to the benefit of the equitable owners.

What happens if a house is left in trust?

If you're left property in a trust, you are called the 'beneficiary'. The 'trustee' is the legal owner of the property. They are legally bound to deal with the property as set out by the deceased in their will.

What should an attorney consider when accepting a fiduciary appointment?

First, the attorney should determine whether her professional liability insurance covers acting as a fiduciary.

What is the fiduciary rule?

In the context of the attorney serving as fiduciary this rule requires the lawyer to reasonably explain: (1) the implications of the lawyer serving as fiduciary; (2) alternative choices of fiduciary available to the client; and (3) the attorney’s potential pecuniary interest in the arrangement.

What is the rule for fiduciary services?

Rule 1.4 requires a lawyer to explain a matter to the extent reasonably necessary to permit the client to make an informed decision regarding the representation.

Why should a client consult with independent counsel?

Because of the potential for conflict with the attorney’s self-interest, the client should be advised to consult with independent counsel. Rule 1.5 prohibits a lawyer from charging an unreasonable fee. When a lawyer serves as fiduciary the question arises as to the fee that may be properly charged for fiduciary services as opposed to legal services.

Can a lawyer accept a fiduciary appointment?

A lawyer should not accept a fiduciary appointment unless she can perform her fiduciary duties (e.g. make investment decisions) competently. Rule 1.2 requires an attorney to consult with the client about how the objectives of the representation are to be carried out.

Can a fiduciary be compensated twice?

While a lawyer may simultaneously serve as fiduciary and attorney for the fiduciary, and be compensated in both capacities, the lawyer should not be compensated twice for the same work.

Who is James McNary?

James T. McNary is the principal of McNary Law Office, P.A. in Red Wing Minnesota where he practices in the areas of estate planning, business succession planning and trust and estate administration. View all posts by James McNary

Who can give legal advice?

Proper legal advice can only be given by an attorney who agrees to represent you, who reviews the facts of your specific case, who does not have a conflict of interest preventing the representation, and who is licensed as an attorney in the state where the law applies. More. 0 found this answer helpful.

What is the benefit of a grantor of a trust?

One advantage to this scenario is that the Grantor of the Trust (the one originally funding it) will be able to confidentially communicate to the drafting attorney their wishes about the Trust and their heirs in ways they wouldn't to a relative or loved one. Sometimes there are aspects of the Grantor's goals, wishes and fears which they'd like to keep private and aren't appropriate for being written into a Trust...

Can a trustee be paid as an attorney?

Therefore, if you choose your attorney as trustee, they have an opportunity to "double dip" meaning they could get paid as trustee and as attorney for the trustee. You should discuss fees with the attorney, who should advise you of your right to seek independent counsel for advice.

Why did the co-trustees tell Attorney X they could not terminate her?

When the co-trustees told Attorney X that they wanted to terminate her services and retain substitute counsel, Attorney X told them that they could not terminate her because she was the “attorney for the trust,” not the attorney for the trustees.

Who can retain counsel in a trust?

Instead, the trustee can retain counsel to represent the trustee with respect to the administration of the trust, and the beneficiary can retain counsel to represent the beneficiary’s interests with respect to the trust.

What is trust in estate?

By definition, a trust (here, meaning the type of trust used in estate, donative or charitable planning) is a relationship among a trustee, a beneficiary, and property. “A trust . . . is a fiduciary relationship with respect to property, arising from a manifestation of intention to create that relationship and subjecting the person who holds title to the property to duties to deal with it for the benefit of charity or for one or more persons, at least one of whom is not the sole trustee.” 2 “ [A] trust involves three elements, namely, (1) a trustee, who holds the trust property and is subject to equitable duties to deal with it for the benefit of another; (2) one or more beneficiaries, to whom . . . the trustee owes the duties with respect to the trust property; [and] (3) trust property, which is held by the trustee for the beneficiaries.” 3

What is the co-trustee's authority to discharge?

The co-trustees petitioned the Probate Court to confirm their authority to discharge Attorney X, based in part on the trust agreement provision empowering the co-trustees to hire (and implicitly to fire) attorneys and other professionals.

What are the three points of a trust?

Geometrically speaking, a trust is a triangle with three points: the trustee, the beneficiary, and the property . One element of the trust relationship, the property, is inanimate and therefore incapable of retaining legal counsel.

Is a trust an incorporeal relationship?

When a trust is thought of as an incorporeal relationship among three elements, the inability of an attorney to represent “the trust” should be apparent. Saying that one is the attorney for “the trust” is akin to saying that one is legal counsel for “the Holy Trinity” or “the love triangle.” While there is no Michigan case law on point, this fundamental truism has been expressly recognized elsewhere. According to the California Supreme Court: “ [W]hen a fiduciary hires an attorney for guidance in administering the trust, the fiduciary alone . . . is the attorney’s client. The trust is not the client, because a trust is not a person but rather a fiduciary relationship with respect to the property.” 4

Is the attorney for the trustee the attorney for the trustee?

Instead, you are the attorney for the trustee who is administering the trust. The “attorney for the trust” phrase, while inaccurate and misleading, is nonetheless heard and tolerated in practice. Experienced practitioners presumably think of “I’m the attorney for the trust” as an abbreviated way of saying “I’m the attorney for the trustee ...

What does Professor Rounds say about a trustee's handbook?

Well, Professor Rounds in Loring and Rounds: A Trustee’s Handbook suggests that that doesn’t go quite far enough, because from a malpractice or professional liability standpoint or a fiduciary duty standpoint, which is what governs our relationship with our client, not the Rules of Professional Conduct.

Which states have fiduciaries?

Other states such as California and New York have statutes that expressly permit lawyers to serve as fiduciaries in documents they draft. In some states, such as Georgia, courts have adopted express rules and procedures that need to be followed.

What is the ABA statement of principles regarding probate?

The first, if you go back to 1973, the American Bar Association Section on Real Property, Probate and Trust issued a statement of principles regarding probate practices and expenses that de alt specifically with the issue of lawyers who served as the guardian of a person or is the executor under a will and took a fee not only as the executor or the guardian, but also a fee for serving as the lawyer for the executor or the guardian because those are actually two separate roles. There was some perception that there had been some abuse in that area and so the ABA, the American Bar Association, came out with some written guidance for lawyers on that. In 1992, the same ABA section came out with Principles for Attorneys Acting in Other Fiduciary Roles, and in 1994 that was also published in a special report of that section.

Who is Susan Snyder?

This is Susan Snyder, ACTEC Fellow from Chicago. As trust and estate planning lawyers, we are often confronted with client requests that benefit the client by reducing the cost of current or future representation, providing first-hand knowledge and efficient execution of his or her intentions by a trusted disinterested advisor, and filling a role for which a client has no other appropriate choice or being the client’s long-term informal general counsel or family lawyer. Because the client’s request could also benefit the attorney, how can the attorney sort through the ethical and legal conflicts and obligations? To address these issues, you’ll be hearing today from ACTEC Fellow , Steven Benefield from Birmingham, Alabama. Welcome, Stephen.

Is equity as long as the Chancellor's big toe?

Well, it’s kind of like, equity is as long as the Chancellor’s big toe. What is significant to you might not be too significant to me and what is a material limitation might seem insignificant to me. So, there you go. Don’t necessarily throw things out as vague simply because they are broad.

Is a fiduciary a degree?

Because as far as I know, the fiduciary duty doesn’t make a distinction between degree. You are either a professional trustee or you’re not. So there’s the caution for the day: if you want to be a trustee or an executor under a document that you are drafting for a client, beware.

Why won't my attorney accept a trustee?

As mentioned above, there are numerous reasons why an attorney will likely not accept the position of trustee, such as limits on their ability to be fully compensated as a trustee and their elevated level of obligations. Thus, your attorney will not likely accept being appointed as a trustee.

What is a trustee?

Simply put, a trustee is someone is who has been entrusted with authority to hold property or assets, for specified purposes. A trustee holds property or assets in trust for one person, to be transferred to another. A common example of the creation of a trustee is when a person creates a valid trust and grants authority to a person ...

What is model rules of professional conduct?

The “Model Rules of Professional Conduct”, a guideline for ethical conduct, cautions attorneys against making agreements that potentially limit their liability. An example of this is when an attorney prospectively seeks to limit their malpractice liability.

What are subsidiary rules?

In addition, subsidiary rules include the duty of impartiality, the duty not to commingle trust assets with the trustee’s personal assets, as well as the duty to regularly provide accounting to beneficiaries. Like a trustee, an attorney will not be allowed to make any agreements limiting their liability as to the fiduciary duty owed ...

What does a trustee do in bankruptcy?

The term “trustee” can also refer to a person who holds property for another during a bankruptcy proceeding. Additionally, a board of trustees oversees a group’s finances.

What is the duty of loyalty of a trustee?

The duty of loyalty requires that the trustee administer the trust solely in the interest of the beneficiaries. Also, the duty of prudence requires that the trustee is held to an objective standard of care in managing the trust property.

What is a licensed estates attorney?

A licensed estates attorney (seperate from the attorney you may seek to appoint as trustee) will be able to assist in drafting trust documents , address any potential conflicts, as well as assist you in resolving those conflict.

What is the role of a trustee in a trust?

These responsibilities can be as simple as making sure the estate’s assets are properly disbursed among the beneficiaries, or as complex as overseeing the continued financial success of stocks, assets, investments, etc. The trustee is obligated to carry out the terms of the trust in good faith and to the best of his or her abilities within reason. If the trustee makes informed decisions, exercises caution when appropriate, follows the guidelines set forth in the trust and takes his or her fiduciary responsibilities seriously, it is unlikely that the trustee would be liable for breach of trust. However, every case is different and if you as a beneficiary feel action needs to be brought against your trustee, or conversely if you’re a trustee who feels the legal action brought against you is erroneous, seeking the guidance of a qualified attorney is highly suggested.

What are the duties of a trustee?

Generally, a trustee’s fiduciary duties can be simplified into three categories: Duty of loyalty: The trustee must act solely in the interest of the beneficiaries; Duty of Care: The trustee must manage the estate in accordance with the law and the guidelines set forth in the trust; Duty of Impartiality: The trustee must treat all ...

What is a surcharge in a trust?

The surcharges will fit into one of three categories: Reimbursing loss or deprecation in value due to breach of duties.

What happens if a trustee violates an express or implied duty?

A trustee may find herself liable if she violates an express or implied duty set forth in the trust whether the violation was in good faith, bad faith, due to negligence, forgetfulness, oversight, etc. The trustee is expected to know and understand what their duties are when accepting the trustee position.

What to do if you have a breach of duties?

If you are a beneficiary and feel a breach of duties has occurred the first step would be to speak to a qualified attorney. He or she can investigate your claim and better determine if a breach of duties has taken place.

Can a trustee be liable for breach of trust?

If the trustee makes informe d decisions, exercises caution when appropriate, follows the guidelines set forth in the trust and takes his or her fiduciary responsibilities seriously, it is unlikely that the trustee would be liable for breach of trust. However, every case is different and if you as a beneficiary feel action needs to be brought ...

Can a trustee be considered insurance?

A trustee cannot be considered insurance against poor market results and making a reasonable mistake should not land a trustee in legal action.

What is a fiduciary?

The person who is duty bound to another person, in a fiduciary relationship, is called a fiduciary. The fiduciary is responsible for the management and protection of either money or property for another person or business. A board member's fiduciary duty to the company's shareholders, or a trustee's duty to the beneficiaries of the trust, ...

Who has a fiduciary duty to the heir?

An executor has a fiduciary duty to the heir. A guardian has a fiduciary duty to the ward. A trustee has a fiduciary duty to the beneficiary. A corporate officer has a fiduciary duty to the shareholder. An employer has a fiduciary duty to the employee.

How to win a breach of fiduciary duty complaint?

In order to win a breach of fiduciary duty complaint, an individual needs to ensure they have received damages due to the breach and be able to prove the breach.

What is a breach of fiduciary duty?

A breach of fiduciary duty happens if a fiduciary behaves in a manner that contradicts their duty, and there are serious legal implications. It is also easier to prove a breach of fiduciary duty as there is no need to prove fraudulent or criminal intent. A breach of fiduciary duty is serious and complex.

What are fiduciary relationships?

There are many types of fiduciary relationships, such as between employer and employee or an accountant and a client. There are a number of common examples of fiduciary relationships: 1 An attorney has a fiduciary duty to the client 2 An accountant has a fiduciary duty to the client 3 A principal has a fiduciary duty to the agent 4 An executor has a fiduciary duty to the heir 5 A guardian has a fiduciary duty to the ward 6 A trustee has a fiduciary duty to the beneficiary 7 A corporate officer has a fiduciary duty to the shareholder 8 An employer has a fiduciary duty to the employee

How do fiduciary agreements become binding?

In order for a fiduciary duty to be legally binding, the agreement must be created under the law, by statute or contract, or by factual circumstances of the relationship, such as being based on case law.

When there is an agreement between one person and another, in a fiduciary relationship, is it a

When there is an agreement between one person and another, in a fiduciary relationship, it is a breach of fiduciary duty for the fiduciary to behave in any manner that would be construed as against the best interests of the client.

Brad S Hindley

http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=84898310526+0+0+0&WAISaction=retrieve In California, an attorney who drafted the trust which names the attorney as trustee is subject to removal and no other reason is needed. See the above code 15642 (b) (6)

Jeremy Johnson

As a VA attorney, I am unable to speak specifically to CA law. However, in VA, a drafting attorney can be named as a successor trustee in the trust instrument.

Charles Edward McWilliams Jr

Please note that I am not a CA attorney, but in most states, the answer is yes, the attorney can be named as trustee. In fact, this is not a terribly uncommon arrangement, though my personal stance is that I never accept appointment as a trustee unless the person is family or has no other options.

What happens if a trustee does not hire himself or herself?

If the terms of a trust do not specify the trustee'scompensation, the trustee is entitled to compensation that is reasonable under the circumstances. 35

What is the dual capacity of a lawyer?

Additional ethical and legal considerations arise when a lawyer serves in the dual capacity of bothfiduciary and lawyer for himself as fiduciary. The risks and abuses that may arise when the lawyer servesin this dual capacity involve fiduciary fees and the attorney's compensation, whether the lawyer is servingin the client's best interests, and the lawyer's duty to use independent judgment in representing the client.