what is a general trustee power of attorney

A Power of Attorney (POA) is a legal document that gives someone legal authority to act for you while you are still alive. The Trustee to an Estate is generally the person authorized to manage your estate’s assets following your death. Power of Attorney Uses

Full Answer

Is a trustee the same as a power of attorney?

The agent under a power or attorney and a trustee appointed to manage trust assets have some similarities—they each have the power to act on behalf of other people, for example—but there are important legal differences between the two positions.

Does a trustee of trust, override a power of attorney?

Your trustee can’t because your IRA is usually not owned by your trust. Although the state laws surrounding the use of Durable Powers of Attorney have been recently modified and in many cases strengthened, it remains difficult to use a DPOA in certain instances.

Can power of attorney be used to create a trust?

Yes — but only with the express authorization of the principal. To be able to create an irrevocable trust, the power of attorney documents must state that the specific right to do so has been granted to the agent. Can a Power of Attorney Holder Open an Account? Yes — but certain requirements must be met.

Does a trustee have power of attorney over property?

Trustee - The Trustee of a Living Trust has the power to conduct all business for the Trust in the same way as an agent under a POA does. It is important to establish if you are the current Trustee or if the Trusteeship only occurs after a disability (like the springing POA). It is critical to establish this issue to know if the powers granted ...

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 ...

What does trustee power mean?

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. 16228.

What is a general trustee?

A Trustee is a person who acts as a custodian for the assets held within a Trust. He or she is responsible for managing and administering the finances of a Trust per the instructions given. Often, the person who creates the Trust is the Trustee until they can no longer fill the role due to incapacitation or death.

Is a trustee the same as an executor?

A trustee is appointed to administer the trust according to a legal agreement. Whereas, an executor distributes the testator's assets according to their will after their demise. A trustee can take over the full duties of managing the testator's assets without court intervention.

What are the three roles of a trustee?

1) Duty to Administer Trust Governed by Instrument (Section 16000). 2) Duty of Loyalty to Beneficiaries (Section 16002). 3) Duty to Deal Impartially with Beneficiaries (Section 16003).

What a trustee Cannot do?

A trustee cannot lie about anything related to the trust. A trustee cannot provide false information to the beneficiaries or the court. For example, when a beneficiary asks about something relating to the trust, the trustee must answer truthfully.

Can a trustee also be a beneficiary?

Both the settlor and/or beneficiary can be a trustee, however if a beneficiary is a trustee it could lead to a conflict of interest – especially when trustees have the power to decide by how much each beneficiary can benefit.

Can a trustee do whatever they want?

The trustee cannot do whatever they want. They must follow the trust document, and follow the California Probate Code. More than that, Trustees don't get the benefits of the Trust. The Trust assets will pass to the Trust beneficiaries eventually.

How do trustees make decisions?

Trustee decisions may be made at a meeting of the trustees, by written resolution or by deed as determined by the terms of the trust. Many trustees prefer to make decisions by written resolution as they find meeting with other trustees too burdensome.

What does it mean to be a trustee of an estate?

The trustee acts as the legal owner of trust assets, and is responsible for handling any of the assets held in trust, tax filings for the trust, and distributing the assets according to the terms of the trust.

Who monitors the trustee of a trust?

More importantly, there is no government agency that oversees Trustees on your behalf or forces Trustees to act appropriately. Instead, each individual Trustee is expected to act according to the Trust document and California Trust law, even though few private Trustees even know the true extent of their duties.

Can an executor override a beneficiary?

Ways an Executor Cannot Override a Beneficiary An executor cannot change beneficiaries' inheritances or withhold their inheritances unless the will has expressly granted them the authority to do so. The executor also cannot stray from the terms of the will or their fiduciary duty.

What is a trustee power of attorney?

Short-term financial needs and those of your family are taken care of. A trustee can appoint an agent under a power of attorney, with the trustee in the role of principal. The agent can then be empowered under the POA to sign for the trustee in whatever circumstances ...

What does a trustee do in a POA?

The trustee looks after any assets that have been placed in the trust —such as property, investments, or cash assets. An agent appointed by the trustee under a POA controls funds in the trust to handle day-to-day expenses —such as bills, living costs, or tax payments.

What is POA in financial terms?

A POA hands legal control of certain aspects of your life to a third party or agent for them to manage on your behalf. In the case of a financial POA, its commencement date, termination, and scope are defined by the type of POA you choose, such as:

What is POA trust?

A trust and a POA are separate legal forms that help regulate your finances before and after you pass away. The two can co-exist, and both may be necessary to make sure that your: Estate is divided among your heirs according to your wishes. Day-to-day financial needs are met while you are still alive.

What is the scope of a POA?

In the case of a financial POA, its commencement date, termination, and scope are defined by the type of POA you choose, such as: Whatever type you grant, you need to be sure that the power of attorney allows your agent to perform all the tasks necessary to safeguard your—and your family’s—well-being.

What is a living trust?

A trust or living trust is a legal document that regulates the transfer of your property after you pass away. It is similar to a will but avoids the lengthy and potentially expensive process of probate, meaning that your property can be transferred to your beneficiaries without having to go through a court.

Do you need a lawyer to notarize a POA?

Ensures you are not acting under duress. Notarization of a POA is required under law , and some states may also require you to have your POA countersigned by up to two witnesses. With all the requirements you need to fulfill to grant a POA, you might think it is easiest to hire a lawyer to do everything for you.

What is statutory form power of attorney?

The statutory form allows a person (the “principal”), to designate a POA agent to make financial and legal decisions if the principal becomes unable to do so during his or her lifetime. We recommend using the Uniform Statutory Form Power of Attorney because it contains an enforcement clause.

What to consider when drafting a POA?

There are many factors to consider when drafting the financial POA and Trustee provisions. Legally documenting your intentions beforehand will make enacting a power of attorney more simple, and/or can ensure your that successor Trustee will have the authority he or she will need to take care of you and your assets.

What happens if a POA is not honored?

If any person or company refuses to honor the agent’s authority under the statutory POA, the court will issue an order mandating accepting the agent’s authority and the court can award attorney’s fees against the person or company that refused to honor the agent’s authority. There are different types of POAs.

Why is it important to review a POA?

For this reason alone, it is important to review your POAs to ensure that the individuals named will be willing and able to serve if needed.

Can a POA be a power of attorney?

However, the agent must obtain the two certifications from medical doctors before the POA becomes effective. The other type of POA is an immediately effective power of attorney. The designated agent is able to serve upon the principal’s signing, without any doctor’s certifications. An agent under a financial POA is able to assist ...

Can a power of attorney access a trust?

The power of attorney is strictly limited to non -trust assets. For assets titled in a trust, the POA document will not authorize the agent to access those assets. Trust assets can only be accessed by the Trustee. This is why many people name the same individuals as agents under the power of attorney and as successor Trustees of the trust. If the principal is certified by two medical doctors, the trust’s Successor Trustee will become Trustee. However, if the principal merely executed an immediately effective POA, but remains Trustee of the trust, the power of attorney agent will not be able to access trust funds.

What is the difference between a Power of Attorney and a Trustee?

First, a Trustee is the person or entity that protects and manages the assets in a trust. For a revocable living trust, that Trustee is usually the person that created the trust. The trust document will have a successor trustee ...

What happens if a trust is not owned by a power of attorney?

It’s important to highlight that if a particular asset is not owned by your trust, then access to that asset will most likely lay with your Power of Attorney agent (not your Trustee) if they have been given authority over that type of asset in your POA document.

How are assets managed in California?

Assets are either managed through a Power of Attorney if they are in just your name or by a Trustee if they are owned by a revocable trust.

What does a trustee own?

The Trustee only manages the assets that are owned by the trust, not assets outside the trust. Common assets that are owned by a trust include things like real estate, bank accounts, non-retirement brokerage accounts, LLC interests, stocks, corporate interests, and personal property. Trusts can also own other types of assets such as cars, boats, ...

What powers does a power of attorney have?

Other common powers that a Power of Attorney agent might exercise are things like: Authority over real property transactions. Transactions regarding tangible personal property. Stock and bond transactions.

What is the most common power of attorney in California?

In California, the most common Power of Attorney is the Statutory Power of Attorney. This Power of Attorney is laid out in the state statute. It is what most banks and financial institutions are familiar with and therefore it has benefit on that merit.

How to contact Brenda Geiger?

To learn more about making sure that your Power of Attorney and Trust contain the right provisions to protect you, call (760) 448-2220 to schedule a time over the phone or in person with Brenda Geiger to discuss. You may also reach us directly through our contact page.

What is a power of attorney?

A power of attorney is a legal document that authorizes someone to act on another person’s behalf. A general power of attorney typically gives the authority to make financial and other decisions for that person, and it ends when the person becomes incapacitated or passes away. When planning for a scenario like incapacity, ...

When a successor trustee and power of attorney are the same person, she will need to bring the correct document as proof

When the successor trustee and power of attorney are the same person, then she will need to bring the correct document as proof — either the trust agreement if the asset is titled in the name of the trust, or the power of attorney when it is titled in the person’s name. Without that documentation, it could cause added delays or avoidable ...

How does a trustee administer a trust?

The successor trustee administers the trust once the grantor is either incapacitated or deceased. In the case of incapacity, the successor trustee typically manages the trust assets, but you can set forth their exact responsibilities and duties in the trust agreement. This may include: 1 Identifying and protecting your trust assets 2 Investing your trust assets 3 Paying the trust administration expenses and fees 4 Filing all required tax returns for the trust 5 Determining your income tax or estate tax liabilities 6 Deciding how and at what time to raise cash from your trust assets to pay ongoing expenses, taxes and debts

What is the role of successor trustee in a trust?

In the case of incapacity, the successor trustee typically manages the trust assets, but you can set forth their exact responsibilities and duties in the trust agreement. This may include: Identifying and protecting your trust assets. Investing your trust assets. Paying the trust administration expenses and fees.

How to invest in a trust?

Investing your trust assets. Paying the trust administration expenses and fees. Filing all required tax returns for the trust. Determining your income tax or estate tax liabilities. Deciding how and at what time to raise cash from your trust assets to pay ongoing expenses, taxes and debts.

Can a power of attorney overreach?

Misunderstanding of power of attorney authority. Similarly, the power of attorney may misunderstand and overreach on his authority when these roles are taken by two different people. By trying to manage assets that are actually held in the trust and therefore under the successor trustee’s control, the power of attorney can unintentionally ...

Who is the trustee of a revocable trust?

With a revocable living trust, the person who creates the trust (the “grantor”) is often the same person who administers the trust (the “trustee”). The successor trustee’s role in this circumstance is critical, because he or she will assume management of the trust if the grantor becomes incapacitated.

When does a trustee's responsibilities end?

The trustee’s responsibilities continue until all of your estate’s assets are distributed to beneficiaries. Distribution may be completed shortly after your death or may continue over several generations.#N#Read More: Duties of an Independent Trustee for Last Wills

What is the role of an executor of a living trust?

What Are the Duties of an Executor of a Living Trust? A Power of Attorney (POA) is a legal document that gives someone legal authority to act for you while you are still alive. The Trustee to an Estate is generally the person authorized to manage your estate’s assets following your death.

What is POA in healthcare?

You may use a POA to appoint an agent for many purposes, including handling a specific financial or legal matter, managing your finances or making health care decisions for you.

What is a power of attorney?

A power of attorney is an essential estate planning document. It lets you appoint an agent to make a range of decisions for you in the event you become disabled (or in case you’re otherwise not available to be there, in person, for a legal or financial transaction).This helps to keep you out of living probate if you ever suffer a disabling injury ...

Do you need a power of attorney if you have a trust?

Does this mean that if you have a trust, you shouldn’t have a power of attorney? Not at all – a power of attorney is an essential document whether you have a will or a trust.

Why do we need a power of attorney?

A power of attorney is a smart way to save money, time, and even embarrassment should you become incapacitated. Without a power of attorney, someone would need to petition the court for conservatorship, which will cost a lot more than the cost to create a power of attorney. Additionally, it will waste unnecessary time. Furthermore, it could be potentially embarrassing if you enjoy your privacy as the proceeding is public record. Anyone can retrieve the court record and learn about your situation.

When does an agent's power take effect?

The agent's power can be effective immediately or take effect when you become incapacitated. In contrast, if you are the initial trustee of your trust, which is common, your successor trustee would not have authority to manage your affairs until you become incapacitated or deceased.

Do you need a power of attorney if you have a trust?

A trust similarly eliminates the need for a conservatorship. However, even if you have a trust you still need a power of attorney. Only your trustee can manage assets titled in the name of the trust, while only an agent with authority from a power of attorney can manage assets that are not in your trust. If you fail to retitle assets that you acquire immediately prior to death or fail to retitle because you neglected to update your estate plan over the years, your trustee will have no authority in regard to those assets. A power of attorney is also needed for assets that are purposely not included in your trust such as life insurance, retirement accounts, or certain government benefits such as Social Security.

Does a successor trustee lose power of attorney?

Upon your death, the agent loses the authority granted by the power of attorney. Your successor trustee, however, does not lose authority when you die. Often times this is precisely when the successor trustee gains authority. The successor trustee manages the trust assets after your death, which often ultimately includes distributing the assets to beneficiaries. The trustee's power ends when the trust ends or if the trustee is replaced.

Can a trust have a power of attorney?

An agent given authority through a power of attorney and a trustee given authority through a trust serve a similar purpose. Both can manage your assets should you become unable to do so. While a trust may not be necessary for every person, everyone should have a power of attorney. By creating a power of attorney, those who can't currently afford a trust can get some of the incapacity protection that a trust provides without the cost. A power of attorney is relatively inexpensive, but very beneficial should you ever become incapacitated.

What are DPOA powers?

These powers may include entering into contracts, enforce legal rights and sell commercial real property that you own. Other DPOAs are limited in scope. An example would be to name someone to write your checks and pay your bills while you are on vacation for two weeks in Europe, after which time the DPOA terminates.

What is the name of the person in a DPOA?

The person you name in your DPOA document is referred to as your “Attorney-in-Fact.”. Your Attorney-in-Fact does not have to hold a law license to be named as such; they merely need to be named in a duly executed DPOA document. Your Attorney-in-Fact has all of the powers enumerated in the DPOA document, which vary from document to document.

What happens when you create a revocable trust?

When you create a revocable living trust and fund it with your assets that would normally be subject to a probate process, the trustee of the trust governs the investment and distribution of those assets. Your bank accounts, investment accounts, real estate and partnership interests transferred to your revocable trust are usually under the power ...

What does "durable" mean in a DPOA?

The “durable” portion in the name of the document indicates that the powers survive your incapacity. If the document is not “durable,” then upon your incapacity all of the powers in the document cease. Even with DPOA documents, upon your death the powers all cease. The DPOA document often gives the Attorney-in-Fact the powers to transact business ...

Can a revocable trust be a DPOA?

Your bank accounts, investment accounts, real estate and partnership interests transferred to your revocable trust are usually under the power of your trustee, not your DPOA. Even when you have a fully funded trust, however, there remain assets subject to the DPOA. Such assets include IRA and 401 (k) accounts, annuities, ...

Can a brokerage house hold a copy of a trust?

The brokerage house and banks can hold a copy of your trust or affidavits of your trustee to protect them from liability. Trusts are therefore preferable vehicles for many of your assets for purposes in the event you should become incapacitated.

Do banks want a trustee?

The brokerage houses and banks want a Trustee to tell them what to do with the assets. The brokerage houses and banks are not as fearful of liability for the actions of the Trustee, since you transferred the assets during your lifetime when you had full capacity.