Category Archives: Trusts

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Photo of Donald Trump and his daughter Ivanka at property that will probably go into blind trust

Trump cannot avoid conflict with “Blind Trust”

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There is been a lot of discussion in the news lately about Donald Trump needing to transfer his investments to a blind trust. For example, the Wall Street Journal suggested in a November 17, 2016 editorial that Donald Trump transfer his real estate holdings so he does not have a conflict of interest in serving as President of the U.S. The conflict of interest concern is that Mr. Trump could push for legislation that will benefit his businesses, thus making his family money, whether or not it is good for the U.S.

So, what is a blind trust anyway? A “blind trust” is a common name for a variety of irrevocable trust in which a person names an independent person to manage the person’s assets. Let me start from the basics and explain so you understand.

A trust is a type of legal vehicle roughly similar to a corporation. You can’t feel or touch a trust. But it exists from a legal standpoint. A trust can own buildings and property. It can sue people in court. It can buy and sell things. It can hire and fire people.

You may have heard of a “living trust.” That’s a colloquial name for a trust that is commonly created by people who own a house and investments and want to avoid probate when they die. It is “revocable” because if you create one, you want to be able to make changes. Maybe you want to add a beneficiary. Or maybe you no longer like the trustee you named to take over when you die, so you insert a new person.

A blind trust is a type of irrevocable trust, meaning that (officially) it cannot be changed by the person who created it. I put the word “officially” in parentheses because there are indirect loopholes. With a blind trust, you create the irrevocable trust, but you remain the beneficiary. Here’s how a blind trust basically works:

  • You go to a lawyer (don’t try doing this on your own) to write the trust document.
  • You are the “grantor” or “trustor” or “creator”, which are all words that mean the same thing. They mean that you are creating the trust.
  • You choose a trustee who is a person other than yourself. The best bet is usually to name a trust company.
  • For a blind trust, you would name yourself as the beneficiary. An asset protection trust is a type of blind trust. Otherwise, you could name your children or other people as the beneficiaries; but then it wouldn’t be a blind trust.

All the news media is going crazy over talk about a “blind trust” as a way of eliminating the potential conflict of interest for Donald Trump. I agree that Mr. Trump can’t transfer his assets to a trust naming his children as beneficiaries. That would trigger a gift tax of roughly 50%.

But if Mr. Trump transfers his holdings to a “blind trust”, he is a smart person and will have checks and balances. He’s not going to risk having some independent company in control and making bad decisions. He will name a Trust Protector, which is an (officially) independent person with the power to make changes to the trust, add/remove beneficiaries, add/remove trustees, and so on. This independent Trust Protector will be someone loyal to Mr. Trump. And Mr. Trump will have the ability to replace the Trust Protector. So even if Mr. Trump is (officially) not managing his properties and businesses, he will have indirect control over them. And he will still be the beneficiary.

Again, the only other way for Mr. Trump to completely divest himself of his businesses is to pay a 50% gift tax and transfer everything to a trust for his kids. But a real estate investor has most of his wealth tied up in real estate. He can’t write a check for 50% of his wealth. So Mr. Trump is stuck. He MUST remain at least someone in control of all of his wealth.

He can do the best he can to transfer his investments to a blind trust. But he will still have some sort of control.

Mr. Trump will probably transfer his investments to a blind trust, and everyone will breathe a sigh of relief. He will have (officially) set things aside so he is no longer in control. But he will still have indirect control, such as being able to ask the Trust Protector to ask the trustee to do things he wants. There is no other way.

That being said, keep in mind that what is good for Mr. Trump as a real estate investor is going to be good for other real estate investors as well. Maybe the lesson out of all of this is to start investing in real estate.


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Why Your Trust Needs a Trust Protector

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If you follow my blogs, you know by now that our law firm not only prepares Wills and Trusts. We also do probate litigation. This means that we go to court to handle messy family feuds over inheritances. One of the most common type of lawsuit has to do with a trustee who steals money, mismanages the investments, or for various reasons needs to be removed. A basic check and balance for a trust is to have a “Trust Protector” named who can remove an irresponsible trustee and appoint a successor. In this post, I will explain why your trust needs a Trust Protector.

That fact is that life is unpredictable. You have absolutely no guarantee that the people you named as trustee in your trust will actually do what you want. I have seen this too often. Let me give just a couple of real life examples.

Example One: Husband and wife sign a trust. They say that if husband dies, husband’s father and wife will be co-trustees. (This was a good idea at the time; it was one form of check and balance.) But, what wasn’t planned for? That husband and wife would get a divorce, husband would die shortly after that, and that the husband’s father would make off with all of the trust property, leaving the wife and kids impoverished. This could have easily been avoided if a Trust Protector had been named who could easily remove husband’s father as trustee and appoint a new truste.

Example Two: As mentioned by Jay Adkisson in a Forbes article from 2012, let’s assume that in your living trust you simply make one of your heirs/beneficiaries the Trustee. “The problem here is that you can’t predict the future. Maybe by the time you die the new Trustee has developed a drug problem, or maybe the Trustee harbored a grudge against one of the other heirs/beneficiaries and now wants them to get nothing (even though you wanted them to get their share). Without a Protector, the situation is bad. But with a Protector, the new Trustee can be fired.”

If your trust does not have a Trust Protector, I encourage you to amend it to include one. Personally, I prefer to have the protector have very broad powers, but also have a fiduciary duty. Thus, they are somewhat like a trustee, except that their powers are different from the trustee’s powers. The Trust Protector’s responsibility is to provide a check and balance to the trustee. The trustee is the active manage. The Trust Protector rarely gets involved except when needed to remove a trustee, modify the trust, or make other permissible changes.

This is not to be done by lay people. See a competent estate planning attorney.

P.S., if you are wondering what’s with the coat of arms and tartan, here’s my explanation. The Deloughery Coat of Arms shows horses, which are a symbol of loyalty. Also, there is a knight’s helmet. These are all symbols of protection and loyalty. These are good traits for a Trust Protector (and for a trustee, for that matter). The tartan in the background is the official Deloughery of Scottsdale tartan, duly registered in Scotland (which is where even Irish tartans need to be registered). I see a Trust Protector as being something like a knight … always on guard to protect the family fortune if necessary.


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Should You Transfer Your Cemetery Plot to Your Trust?

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Should you transfer your cemetery plot to your trust? Yes, if you want to make sure that your wishes are carried out. In Arizona, the applicable law defines “cemetery property” that you would transfer to your trust as “a cemetery plot, including interment rights, mausoleum crypts, niches and burial spaces.”

If you have purchased such a cemetery plot or mausoleum niche (such as with a prepaid burial plan), the cemetery will give you a “Certificate of Ownership” for use of the plot. You don’t actually own the plot. There is no deed that gets recorded anywhere. Upon your death, the cemetery will contact the “next of kin” to determine what happens with your body. “Next of kin” generally means your spouse, then your kids (if you have any), or if you aren’t married and have no kids, then your parents or siblings.

But … what if your “next of kin” is someone who is irresponsible or who is estranged from you? Then what?

That would be a good reason to have a revocable living trust and to have the cemetery re-issue the Certificate of Ownership in the name of the trust. The cemetery will charge a small fee (perhaps $200) to re-issue the Certificate of Ownership. To get the ball rolling, I usually have my client sign an Assignment of the lot (or niche). I then fax or email that Assignment to the cemetery, along with the contact information for my client. The cemetery will contact the client to arrange for payment, and will then re-issue the Certificate of Ownership.

Here is the language for a sample Assignment:

Assignment of Personal Property

For value received I, [name of person] of [city and state], assign, transfer, and convey to:

[name of trustee], Trustee of the [name of trust] dated [date of trust], and any amendments thereto

The following described Interment, Entombment, Inurnment or Niche Right of Use:

[Description of the lot or niche, such as Section 6, Block 2, Lot 5, Space 3 Single] situated in [name of cemetery, and County and state of location], according to a map of said plot, Mausoleum or Columbarium filed in the office of the County Recorder of said County, and also in the office of said [name of cemetery], which map is hereby referred to and made a part hereof.

 

Dated:  ___________________                                                                                 [signature]

STATE OF ARIZONA                                              )

COUNTY OF MARICOPA                                      )  ss.

This instrument was acknowledged before me on [date], by [name].

[Seal]

                                                                                   

Notary Public

My commission expires:                                             

Once transferred to the trust, the trustee will be able to ensure that your body is properly disposed of according to your wishes. I suggest making sure that this does not conflict with any Health Care Power of Attorney or other document that gives a person the ability to decide what happens to your remains when you die. Avoid conflicts by having the same person in charge of this decision. (You don’t want your health care power of attorney and trustee fighting over what happens.)


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Business Owners Need Estate Plans

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Business owners need estate plans in order to ensure their businesses survive once they pass away. Here is why. Let’s say you own a successful business. It has lots of employees and ongoing business. There are contracts that need to be completed, and staff that needs to be paid. Then you die. You have a Will that names your spouse as the Personal Representative (executor). However, Wills need to be probated, and normally the soonest that can happen is one week from the date of death. Assuming there aren’t any hangups (such as the Will failing to waive bond), the surviving spouse can be appointed as Personal Representative right away.

But a week can be an eternity in the business world. Employment laws dictate that payroll needs to be paid within a certain time after the pay period ends. And what if there are employees in the field who need expenses covered?

Also, who is going to manage the business until it gets sold? Selling a business can’t be done in a matter of days. It takes time. Can your business last the months is normally takes to find a buyer and arrange a sale?

Here is the best way to plan ahead of time. The best way to plan ahead is to have a revocable trust that names a responsible (and business savvy) trustee to take over if you can no longer manage your business. Then make sure that your trust owns the business. If your business is an LLC, the member of the business needs to be the trust. (In other words, you will file Articles of Amendment for your LLC that replaces you as the member with, for example, “John Doe, Trustee of the ABC Trust, dated January 1, 2014.”) Make sure the trust language permits the trustee to manage an ongoing business, and that it permits the trustee to delegate the responsibility of managing the business to a replacement business manager.

NOTE: The word “manager” is used in two different ways here, and it can be confusing. The “manager” of an LLC is the person listed with the Secretary of State as the person in charge of the LLC. However, in terms of managing a business, that may be completely different people. I normally assist clients in this regard by having the LLC Manager (the person named as the official manager on the Articles of Organization) sign a Resolution naming one or more assistant managers. These assistant managers are the people who are actually on the ground running the business: making sure that paychecks get signed, continuing marketing efforts, meeting with clients, etc.

You can read more on this topic at an enterprise.com article here.

Have you heard of situations in which the business owner died and the business struggled as a result? Do you have any insights? Please share below.


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Recovering from Trustee Misconduct

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Recovering from Trustee MisconductBeneficiaries of a trust depend greatly on the trustee to act in the best interest of the beneficiaries and the trust.

Unfortunately, trustees don’t always live up to the duty and responsibility of their position. Beyond creating headaches for family members and other beneficiaries, such misconduct can rob them of their inheritance.

In previous posts we covered the actions that can led to the removal of a trustee [link to post on what qualifies trustee for removal] and how to petition the court to remove the trustee and appoint a successor.

After those important steps, how do you go get back the stolen or misused money? It all depends on whether you are able to trace where the money was sent, if it was spent or if it still exists in some form. Let’s look at an example:

If a trustee used money from the trust to buy a new house, and if that house has not been sold or transferred to someone else, you can get a court order to freeze the property and eventually have it transferred back to the trust.

If the money is gone, there are three ways to recover funds:

  1. Surcharge. This applies if the trustee is also a beneficiary of the trust. In this situation, the former trustee’s inheritance from the estate can be reduced by the amount of any judgment the court passes against him or her. To have a surcharge ordered on a former trustee, you must file what’s known as a “Petition for Surcharge” with the probate court.
  2. Seize assets. If you’re able to trace the trustee’s spending to existing assets (cars, jewelry or other property), or if you’re able to show bank statements showing cash the trustee’s withdrawals from estate funds at ATM machines, the court can place a judgment against the trustee, making it more likely that you will get the money back. If the trustee has spent money on intangible purchases such as vacations, it will be much harder to get the money back.
  3. Personal refund. If the trustee has other personal assets (such as a house or bank accounts), the court can order the former trustee to turn over those assets to compensate for the value taken from the trust.

The process of getting the money returned can be lengthy. It can take from three to six months or more to settle a case recovering losses. The court process involves gathering evidence, and filing a petition with the probate court (this is all part of the steps necessary to remove a trustee).

After the court determines the amount of damages caused by the former trustee, the new trustee or other beneficiaries can then request the court to make further orders. To give an example, let’s say that a former trustee, Roger, owned a house, which used to be owned by the trust. After Roger has been removed from the position of trustee, the court can order that the house belong again to the trust. An attorney for the trust can then get a certified copy of the order and record the ownership of the property with the county recorder in the county where the property is located.

If you’re dealing with a trustee who is mishandling a trust, don’t wait to seek help. An experienced probate litigation attorney can walk you through the tricky and complicated petitioning process. It’s important to have someone knowledgeable on your side who knows the law and the court system.

Your attorney should work closely with you and the court to help you recover lost funds that are justly yours. The probate courts are there to help you and your family. Remember to act quickly and seek the assistance of an attorney. This will increase the likelihood that you will recover your inheritance.

Have any questions about recovering from trustee misconduct? Give us a call. We’d love to help.

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Resolving Disputes Involving Guardianships and Conservatorships

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Resolving Disputes Involving Guardianships and ConservatorshipsDisputes involving guardianships and conservatorships can be confusing and overwhelming for most people. The single biggest mistake I see in this area is people not consulting a probate litigation attorney. An experienced attorney will not only be familiar with the applicable statutes and case law, but will also know the applicable probate rules. Here is what you need to know about resolving disputes involving guardianships and conservatorships.

Guardianships and conservatorships is one of those areas of law that the uninitiated simply cannot tackle alone. People serving as guardians or conservators find themselves in a position where they are expected to be an expert on a complex topic they likely know little about. This is fertile ground for anger, surprises, greed and revenge among heirs and family members. While some guardianship and conservatorship matters are settled peacefully and amicably among family members and heirs, many times the actions by the guardian or conservator can engender disputes and bad feelings.

I recently worked with a prominent family in the Phoenix area to help the adult children resolve a dispute about their mother’s money. It turned out that one sister who had been named trustee and financial (general) power of attorney was mismanaging funds. To rectify this, I helped the other siblings file for conservatorship. We were able to obtain copies of all the financial documents and track all the funds that had been held in the mother’s trust and LLC.

After examining the financial documents, we could then force the sister who had been serving as trustee and financial power of attorney to pay back the money she’d stolen from the trust and business. We then replaced her with a professional trustee. (My clients became co-conservators.) We resolved this dispute in a cost-effective and family-oriented manner while maintaining the family’s privacy, thus avoiding public drama that would have tarnished the family name and reputation.

Conservators and guardians make important decisions on behalf of a loved one. But if the conservator or guardian is not living up to the responsibilities of the position you do have options. A probate litigation attorney can help you assess your unique situation and give you direction.

If you are an heir or if you’re serving as a guardian or conservator and you’ve found yourself in a dispute, don’t wait and hope the problem will go away on its own. Enlist the help of a probate litigation attorney right away.

In our next post we will look at solving disputes that involve trusts. If you have questions about guardianships and conservatorships, or other probate issues, please comment below or contact our office.

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Trust Management: 3 Top Mistakes Trustees Make

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Trust Management 3 Top Mistakes Trustees MakeServing as a trustee is a big responsibility that can be complicated and confusing. It’s easy to fall into trouble if you’re misinformed or careless in the trust management. Keep in mind these three pitfalls when serving as trustee:

  1. Breaching fiduciary duties. Fiduciary duty is the highest legal duty of care recognized by the U.S. legal system. The most common example of breaching duties is when a trustee uses the trust to pay for personal expenses or purchases.
  2. Failing to keep beneficiaries informed. Trustees have the duty to keep beneficiaries “reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests.” Thus, beneficiaries are entitled to periodic accountings showing investments, disbursements and expenses. If a trustee is not transparent with these actions, he or she may be subject to legal action.
  3. Breaking the law. This can involve theft – the most common way a trustee may break the law – or the failure to pay taxes.

A trustee who doesn’t act in the best interest of the trust may be subject to consequences in civil court. The most common of these – for trustees who are also beneficiaries of an estate – is a surcharge, which is a legal term under probate law for a type of lawsuit that will reduce the trustee’s portion of the inheritance to return any losses to the trust that have been incurred because of mismanagement by the trustee. A trustee can also be personally liable for losses resulting from mismanaging assets in the trust.

If you’re concerned that a trustee is mismanaging your loved one’s trust, it’s important to seek help  immediately from an experienced probate attorney.

Many people want to avoid going to court to resolve their probate issues, but probate court exists to help families sort through the process of settling an estate. In fact, probate court can be particularly beneficial when a trustee is either a family member or a friend, because emotions and stress can complicate these situations.

If you’re a trustee and feel over your head in fulfilling your duties, attorneys can help you avoid pitfalls. You don’t have to do it alone. Consider hiring an attorney, bookkeeper, accountant or even a corporate trustee to work with you. A little bit of help can prevent not only mistakes but undue stress during an already-stressful time.

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Estate Planning Basics: Trust Assets and Probate Assets

Estate Planning Basics Trust Assets and Probate AssetsEstate planning isn’t just for the wealthy. It’s an important element of protecting the people you love and the legacy you want to leave behind. An estate is made up of assets.

Assets can be any form of cash, physical property or intangible benefits. These include:

•  A house
•  other real estate
•  business interests
•  stocks, bonds, and mutual funds
•  money-market accounts
•  brokerage accounts
•  royalty contracts, patents, and copyrights
•  jewelry and antiques
•  precious metals
•  works of art
•  valuable collections

For estate-planning purposes, assets fall into two main categories: trust assets and probate assets. Assets held within a trust [link to post on trusts] are referred to as trust assets. Assets that are not within the trust are called probate assets. I’d like to outline the two, and show why creating trust assets is preferable in estate planning.

Trust assets

The advantage of putting assets into a trust include reduced estate taxes and greater control in how your descendants will receive their inheritance. When you put your assets into a trust, you no longer own the assets legally, which become known as trust assets.

You can decide what you’d like to be put into a trust, to become a trust asset, and you do this by having the item or property or deed officially given to the trust, with a title in the form of a deed or other legal documentation. For example, a certificate of title for a car owned by a trust should show John Doe, Trustee, or something similar indicates that it’s the trust that owns the asset, and not John Doe himself. There are various ways to transfer property such as jewelry, art, coins and other collectables, and an estate planning attorney can assist with this.

Probate assets

All assets that are not included in the trust are probate assets. A court proceeding is necessary to determine how these probate assets can be distributed. Thus, it makes sense to consider assigning assets to a trust, to avoid having your heirs go through probate court to receive any legacies you have assigned them.

The actual act of transferring assets to a trust can be a bit complicated and challenging, even for an attorney who has some experience with this process. But it’s worth the time to work with an experienced estate attorney to set up a trust for assets so that your estate can run smoothly.

Get help from someone who is skilled in estate planning and probate. It’s critical that you have legal documentation that the trust owns the assets. Without such documentation, these assets cannot be distributed as part of the trust and, as I mentioned, they’re considered probate assets.

The consequences of a poorly planned estate can affect not only the peace of mind of your survivors, but can be detrimental to the value and distribution of the assets you leave behind.

Find an experienced attorney who is familiar with probate law and asset protection in your state to protect your family and protect your legacy. [link to service line questionnaire]

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Estate Planning: What Is a Trust?

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Estate Planning What Is a TrustA trust is similar to a will. It’s an elegant way of specifying how your property gets distributed upon your death. Property placed in a trust can pass to your designated beneficiaries without the delays and expense of going to probate court.

But – a big but – a living trust is not a complete substitute for a will. You won’t be able to name a guardian for a minor child, for example. For many people a trust is a more efficient way to transfer property at death, especially large-ticket items such as a house. Here are a few benefits of placing your property in a trust:

  1. You can avoid probate. This allows you to bypass probate and to pass the property directly to your designated beneficiaries. This is especially important if you own real property in multiple states.
  2. A trust can help with property management for those who can’t or do not want to manage for themselves. (This is particularly beneficial for older individuals who want to make sure they will be cared for without the need for guardianship or conservatorship.)
  3. Trusts can reduce estate and gift taxes.
  4. A trust protects assets from creditors and lawsuits better than does a will.
  5. If you want to protect family wealth for future generations, you can set up a trust to protect these assets (whether a business or other accumulated assets). You can also save estate taxes (if this is relevant). A trust can also protect these assets from irresponsible heirs over several generations.

There are a variety of types of trusts. They are both flexible and complex. One of the most common types of trusts is called an AB trust, also called a bypass trust. An AB trust helps provide significant estate-tax savings as well as preserve assets to survive the blending of families when and if spouses get remarried. You need three things to create a trust for your estate:

  1. The creator, also called settlor or grantor
  2. Trust property
  3. Beneficiaries

You don’t need to name someone to manage your trust (though this is certainly a good idea). The court can always choose someone to administer the trust. You can have a trust as long as you have someone who created the trust, you have property in the trust and some identifiable beneficiaries.

Think of a trust as a special place where ordinary property from your estate goes, as the result of some type of transformation that occurs, that takes on a new identity with immunity from estate taxes and resistance to probate. In this article, I primarily discussed “living trusts” or revocable trusts. You can read more about this type of legal instrument here.

I’d love to hear from you. If you have any questions please give us a call or leave a comment below.

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The Role of a Personal Representative, Part 2

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The Role of an Estate Planning Representative, Part 2As I mentioned in my previous video, a good estate plan covers key life decisions. Your personal representative will be the one to make the necessary decisions to carry out your wishes.

Here are further responsibilities, based on the law in Arizona, but pertinent no matter where you live in the U.S.

  1. Provide an inventory of assets. This is where having an attorney with some experience comes in handy to help you classify different types of assets, especially personal property like furniture, ceramics or porcelain and photographs.
  2. Comply with the applicable standards of care. As personal representative, you are required to perform duties with prudence, reasonable care and caution.
  3. Keep detailed records. Keep and maintain records of everything: copies of checks, receipts, bills. Everything. You need to be able to prove where every dollar goes. So, avoid dealing in cash.
  4. Pay valid debts and expenses. There’s a specific procedure for determining whether a debt is valid. This takes into account all the debt and how to treat creditors equally as part of a personal representative’s fiduciary duty.
  5. Pay applicable taxes. Always pay applicable taxes before paying creditors and distributing assets.
  6. Distribute remaining assets. After all taxes and expenses have been paid, the remainder of assets can be distributed as the will has specified.
  7. Change the address of the estate. Until probate is closed and you complete your role as personal representative, you must notify the court in writing if you move or if your mailing address changes.
  8. Document payment your receipt of payment as personal representative. It’s important to document meticulously the time you’ve spent and the expenses you’ve incurred when seeking reimbursement from the estate you’re managing.
  9. Court involvement. The court prefers minimal involvement in settling estates where a personal representative has been appointed, but will get involved if the estate is not closed within two years.

To be sure your wishes are carried out, carefully select a personal representative for your estate. A little extra planning now can protect your family’s future. You can read more about a personal representative’s duties here.

If you have any questions about the duties of a personal representative, I’d love to help.



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