W. A. Hlavaty Professional Fiduciary Services is able and qualified to serve as the Trustee or Successor Trustee, Conservator of Person and/or Estate, Administrator of a Decedent's Estate and Agent under a Durable Power of Attorney or Advanced Health Care Directive.
The most common Trust that people are aware of is a person's or family's Living Trust. Most people have at least a passing acquaintance with the term.
A person who establishes a Trust is called a Trustor or Settlor. Usually, a Trustor/Settlor, perhaps a husband and wife, also serve as the initial Trustee(s); however, this is not always the case. Often, the type of trust created and the Trustor's intent control who is designated as the initial Trustee of the Trust. When the time comes that the Trustee(s) cannot handle the duties of being a trustee or no longer wants to continue to fulfill the responsibilities of the position, a Successor Trustee can be appointed. This Successor Trustee is nominated, by the Settlor(s), either in the initial drafting of the Trust or at a point later in time. The Successor Trustee assumes the same responsibilities as the initial Trustee to see to the prudent handling of the Trust assets and follow the duties and responsibilities as laid out in the Trust document(s). The Successor Trustee has the duty and authority to care for the Settlor(s), generally the primary beneficiary of the Trust, just as if the Settlor(s) were still the Trustee(s). Sometimes, a Trustor creates a Trust with the intent that it will be managed from its creation by someone other than the Trustor. The Trust document provides the circumstances and conditions when the provisions of the Trust can be changed. Unless the Trust terms provide to the contrary, a Successor Trustee has no authority to change the Trust terms. A revocable Trust becomes irrevocable either upon the incapacity or death of the Trustor. When that occurs, it means the Trust terms generally cannot be changed.
Through a comprehensive estate plan, one can eliminate the need for a Court imposed Conservatorship of one's Person or Estate. In short, there are a variety of Trusts that can be drafted and tailored to fit one's needs.
Acting as a California Licensed Professional Fiduciary for over 25 years, Mr. Hlavaty has personally administered the following trusts:
Many times through the use of a Successor Trustee and other documents the need for a Conservatorship of either Person or Estate can be eliminated. There are many types of Trusts that can be drafted for a variety of needs. Trusts that Mr. Hlavaty has administered include:
- Family Living Revocable and Irrevocable Trusts
- Special Needs Trust-SNT
- Irrevocable Life Insurance Trust-ILIT
- Charitable Remainder Trusts - CRT
- Charitable Lead Trusts - CLT
- Educational Trusts
Administrator of the Decedent's Estate
When one dies with a Will, the document usually nominates an Executor (or, if female, an Executrix). Once appointed by a Court, an Executor is responsible for handling the decedent's final arrangements. He must file required Court documents listing the decedent's assets and have them appraised. He must notify the decedent's known creditors, including taxing and public benefit entities, and pay the decedent's last debts and expenses. If necessary, he must liquidate assets to pay the cost of administering the decedent's estate. He must file the decedent's final income tax returns and pay any taxes that are owed. He must obtain tax identification information and file any necessary tax returns for the estate. He must prepare estate accountings for Court approval and obtain Court approval to distribute the decedent's remaining assets to beneficiaries and heirs at law. If a nominated Executor is unwilling or unable to serve for a variety of reasons. Work commitments often take priority over a nominee's time, ability or desire to devote additional efforts to the time-consuming tasks of administering the decedent's estate. Sometimes, the decedent fails to nominate an Executor or dies without a Will or Executor nomination. If the gross value of a decedent's assets at death is $150,000 or more at death, then his estate can be administered by a Court appointed Administrator. In all of these instances, a Licensed Professional Fiduciary may be the most effective cost-saving option to serve as Administrator as they are State certified as possessing the necessary knowledge and ability to competently administer a decedent's estate.
Durable Power of Attorney for Management of Personal and Financial Matters - DPOA
A Durable Power of Attorney for Property Management (DPOA) is a legal document in which you grant another person - your Agent - authority to act on your behalf in relation to your personal property and real property that are not governed by your Trust when you are unable to do so. This power can become effective immediately when you sign the document or at some time in the future when certain conditions are met or certain actions occur that necessitate its use. This authority exists during your lifetime. The "durable" nature of this document enables your Agent to continue on even if you become physically unable or mentally incompetent; however, the agency is automatically terminated when you die. An Agent acting under a DPOA has essentially the same duties as would a Successor Trustee but for assets that have not been titled in a Trust. Your estate planning attorney can draft this document for you. You can change your Agent or revoke their powers under your DPOA during your lifetime.
Advanced Health Care Directive - AHCD
An Advance Health Care Directive is a document in which YOU decide who will make your medical and health care decisions when you are unable to do so. This document allows YOU to make YOUR end of life decisions. Your estate planning attorney can draft this document for you. YOU can change your Agent or revoke YOUR AHCD during your life.
Health Information Portability Accounting Act - HIPAA
Often called a "HIPAA Release," this stand alone document authorizes your medical care providers (i.e. doctors, nurses, hospitals, labs, etc.) to divulge and discuss YOUR specific medical conditions to the designated Agent in your AHCD. Without this document, YOUR Agent still retains YOUR authority to make medical decisions for you and to carry out YOUR end-of-life wishes; however, they will do so without input from your medical professionals that would otherwise assist them to make informed decisions for your medical care. Your estate planning attorney can assist you in preparing this document. YOU may change your Agent or revoke this authority during your life whenever you are mentally competent to do so.
Conservator of Person and/or Estate
A Conservator is a person appointed by Superior Court to take responsibility for someone who the Court deems is unable to care for themselves due to mental impairment or physical disability, called a Conservatee. A Court can also appoint a Conservator for anyone who asks for a Conservator to protect them and their assets from unscrupulous third parties. California identified two types of conservators: A Conservator of the Estate administers the Conservatee's assets while a Conservator of the Person provides for the Conservatee's daily care and needs.The Court often appoints the same person to act both as Conservator of the Person and Conservator of the Estate. YOU can nominate someone as YOUR Conservator should the need arise in your comprehensive estate plan (i.e. Trust, Will, DPOA, AHCD, etc.)
If a Conservator of the Estate takes control of any of the Conservatee's income or assets, then the Court requires him to be bonded. A bond protects the Conservatee's assets. The Conservator is required to file a full accounting and his fees request with the Court for review and approval. A Conservator of the Estate is responsible to prudently oversee the management and administration of a Conservatee's real property and personal assets.
Other duties include, but are not limited to, timely payment of the Conservatee's bills, filing the Conservatee's income tax returns and filing Estate accountings with the Court. A Conservator of the Person provides for Conservatee's daily needs including medical, mental, and dental treatments. A Conservator's responsibilities are dictated by the specific needs of the Conservatee. These range from determining the location where and conditions under which the Conservatee lives. If the Conservatee wants to remain living at home, the Conservatee will determine what is needed to achieve this intention. The Conservator must address all areas where there is a need for assistance such as in-home caregivers, shopping, cooking, assistance in dressing and grooming, transportation, and the like. The Conservator is responsible to make medical decisions and obtain proper treatment for the Conservatee including keeping medical appointments, assisting the Conservatee in socializing with family, friends, the community, their religious needs and other activities that are beneficial to the Conservatee.