A legal obligation with respect to property given by a person (donor) to another (trustee) to the advantage of a beneficiary
A legal document by which a person, the testator, expresses their wishes as to how their property is to be distributed at death, and names one or more persons, the executor, to manage the estate until its final distribution.
A document that delegates authority to manage money and other financial and business matters of a person. (Some people say that if they are named as the agent in a power of attorney document, they are the "power of attorney". Technically, they are the agent to act under a power of attorney document. A power of attorney is a document, not a person.)
If someone can't manage their finances then another person needs to help them. We're talking about more than not knowing how to balance your checkbook. If you can't pay your rent or your mortgage because you simply don't know how to do it, you might need a court appointed conservator to help you. Or if you are malnourished because you don't use your money to buy groceries, then the court may need to appoint a conservator to help you. If you're responsible with your money and use it on drugs or alcohol or gambling rather then things that you need to live, then maybe someone needs to be appointed by the court to do that for you.
This is a court-appointed person who makes healthcare decisions for another who is unable to because of either being too young, lacking the capacity, or because of a disability.
Magellan Law Firm
In 1519, Captain Ferdinand Magellan began a voyage which eventually resulted in the first known voyage around the entire earth. The journey lasted almost three years.
We see many parallels to Magellan’s voyage and the area of probate law:
- Documentation is Essential. Just as we only know about Magellan’s voyage because it was well documented, the outcome in probate cases often depends on the documentary evidence. A carefully drafted Will or Trust is useless if (1) it is never found after a person’s death, (2) the bank accounts and IRAs have pay on death beneficiaries that do not match what the Will or Trust says, or (3) the person in charge of administering the estate or trust refuses to honor by the language in the Will or Trust.
- Space and Distance. Magellan’s expedition showed the need for an International Date Line to be established. Upon returning the expedition found its date was a day behind, although they had faithfully maintained the ship's log. They lost one day because they traveled west during their circumnavigation of the globe, opposite to Earth's daily rotation. This caused great excitement at the time. Similarly, space and distance plays a huge role in probate cases. For instance, nowadays, families are spread out all over the country and world. Also, often when a person dies, someone continues to live in the house (such as a step parent) who has control over documents and personal property.
- Honoring the Dignity of Life. Captain Magellan was killed when he and a small attack force attempted to force the inhabitants of one of the Philippine islands to convert to Christianity. The ruler of that island was angry that Magellan was trying to impose a new religion and way of life on his people and sent 1,500 islanders to meet Magellan’s group of 49. (Most of Magellan’s group retreated to their ships after Magellan was killed.) Probate law is concerned with the various disputes that can occur as a result of a person’s death and dying. The probate court is more family centered than the civil courts. This is partly because our society realizes that families grieving the loss of a loved one need to be handled different than other types of court cases.
- Importance of the Rule of Law. Following Magellan’s voyage, the countries of Spain and Portugal were forced to negotiate “ownership” of the various islands that they discovered. Spain got the Philippines and Portugal got the Moluccas (now part of Indonesia). Similarly, the rule of law, agreements, and compromises all play a part in probate litigation. Conflict arises when different people’s ideal outcomes clash. The role of the probate court is to settle these sorts of disputes.
- Intent, Meaning and Purpose. The initial purpose for Magellan’s voyage was to secure a route through which Spanish ships could navigate to the Spice Islands. Only after Magellan’s death in the Philippines in 1521 did the new captain (Elcano) then decide to push westward, eventually completing the first voyage around the globe. In probate, determining the incapacitated or deceased person’s intent is a primary concern. The interpretation of a Will or Trust is guided by the signer’s “testamentary intent”. In terms of guardianships and conservatorships, the incapacitated person’s wishes are honored to the extent it is practical.
- Choreographing the Details. Magellan’s ship the “Victoria” made the journey around the globe, while all the other ships did not. The majority of the crew died along the way. Similarly, which families survive the turmoil of probate disputes depends on many factors. A well-drafted estate plan increases the likelihood of successfully transferring wealth from one generation to another. But you also need a well-trained crew (i.e., younger family members) to take over when older senior navigators pass away.
- Opening New Opportunities. If Captain Elcano had merely honored Magellan’s wishes after Magellan’s death, Elcano would have turned around and returned eastward the way he came … never sailing around the world. The world is changing quickly, and families need the flexibility to grow and adapt to rapidly developing technology and other exponential changes that are occurring.
- Attitude and Approach. Despite horrible malnutrition and hardships, Elcano pushed westward because he had the confidence that he was capable of completing the journey. In probate law (as in everyday life), a person’s attitude and approach makes all the difference. For example, fear is paralyzing and will keep you from taking needed actions. A feeling of insecurity will lead to such results as greed, hoarding, judgmentalism (calling family members names), attachments (to old stories and family heirlooms), and codependencies (making decisions based on how someone else feels).
- Wants the best for his/her family—one who wants their assets to be inherited by their family. If they have no immediate family, they want to provide for parents, brothers, sisters, nieces, nephews, and other close relatives or set up a Family Foundation that will help to make the world a better place. We do not want a client who wants to blow their money on riotous living and have the check to their undertaker bounce.
- Has a trusted relationship with their advisors.
- Is enthusiastic and sincerely interested in becoming efficient and organized.
- Is decisive. If a client is given evidence that they will save a million dollars by making a legal move now, we do not want to have to follow-up with them three or four times to get them to act on this advice.
- Has an eagerness to provide complete information to enable us to properly design a plan.
- Wants to create a plan for financial and health care management in the event they are incapacitated.
- Doesn’t have an existing estate plan (or has a 3+ year old estate plan).
- Has an interest in asset protection strategies for themselves and for their children.
- Has assets of at least $5,000,000.
- Is financially responsible.
- Wants to train their children and grandchildren so that the family will be successful for multiple generations.
- Looks forward to a long-range working partnership.
Paul Deloughery is a highly regarded trusts and estates attorney. He is dedicated to ensuring that everyone within a family is heard. Deloughery has taken the experience of his own complicated family history, learned from it and used that knowledge to make his law practice, Magellan Law, the leading authority in the field.
Magellan Law, named for the courageous explorer who first circumnavigated the globe, has helped scores of families navigate complicated interpersonal relationships to sort out difficult, sometimes emotionally painful caretaking responsibilities and legacies. Deloughery knows how fraught family ties can be, and how complicated the surrounding issues of money, inheritance and elder care can be, to name just a few.
In working with you, Magellan Law’s attorneys’ goal is always making sure the facts actually come out so the right thing can happen. Neither Mr. Deloughery nor his associates at Magellan are into gamesmanship, nor are they doing this work for the love of litigating. Paul Deloughery wants families to find a solution in these complex matters.
Unlike other law firms, Magellan Law uses the experience, compassion and Mr. Deloughery’s enduring sense of right to make sure that he and his firm stand alongside their clients in the trenches, to arrive at solutions to seemingly insurmountable problems, and to prevent further problems from arising.
“A family is like a ship,” Deloughery says. “The larger the ship, the more complicated it gets. Magellan helps steer you right.”
In your probate or estate planning matter, Magellan Law will work diligently to achieve the desired result. We must submit several forms to the court. You and your attorney may need to appear in front of a Judge or Commissioner. Together we will help you navigate through this! You can expect Magellan Law to make this process easier on you.
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