Month: July 2016

  • Ten Years After He Died, A Trust Breach Occurred

    Trust breach happens when your children decide to argue over semantics.  Would you rollover, in your grave, if your children sued one another ten (10) years later?

    Well, this actually happened in a case called In re: The Frank John Rodriguez Sr. Trust.  As unfortunate as it is when trustees are sued by beneficiaries, we can learn a lot from this public case.

    Really, I believe the punchline for the Rodriguez family comes down to cordial communications and unconditional love between siblings.  Unfortunately, it doesn’t appear either of these attributes existed.

    First lesson in preventing a trust breach

    In my experience, most if not all trustees are trying to do the right thing.  Sometimes this works out perfectly.  Other times, sibling rivalry kicks in and every decision gets scrutinized.

    Money is not the issue.  Instead, family dynamics is the controlling factor.  Not every family is equipped or able to handle a trust for an estate.  I have seen many examples where a parent’s estate should have been divided in equal shares.  Yes, you have a choice.

    What I am really trying to say is this:  you know your family better than me and I encourage every person to reflect and predict the behavior of their family members.  For example, ask yourself:

    • What might go wrong?
    • Do my children or their spouses disagree a lot?
    • Are they mentally strong enough to make black and white decisions?
    • Is there a good reason why equality of an inheritance is a bad idea?

    Second lesson in preventing a trust breach

    The second lesson we can learn from the case above is the following rule:  a trustee must manage trust assets as a prudent investor, considering the purposes, terms, distribution requirements, and other circumstances of the trust.

    Yes, every person wishing to form a revocable trust should select their trustees wisely.  More importantly, a trust document should help the trustee.  Even from your grave, you can impact your family by helping them:

    • Identify trustworthy professionals or entities for assistance,
    • Allowing for a corporate trustee, and or
    • Leaving room for an error of judgement.

    Third lesson in preventing a trust breach

    The third lesson we can take from this case is the fact we as people can prevent or reduce the likelihood of a trust breach by engaging in open communications.

    Communication needs to extend beyond text messaging and Facebook postings.  I am talking about sitting down for an hour or two and working through details.  Those who need help can:

    • Retain an agent like an attorney,
    • Use mediators, and or
    • Choose a public setting to reduce tension.

    Getting back to the case above, Brother is upset with Sister.  If you have a sibling, perhaps you have experienced this too.  What makes this case unique is the issues being argued.  Here, Brother believed he received an offer from another person wishing to buy their dad’s property at twice the value.

    In my experience, an offer to purchase property works through a real estate agent and or the usage of a purchase agreement.  This case doesn’t appear to have either.

    Also, the Court does not explain why a firm offer failed to exist.  Even more significantly, my gut says Brother wanted conflict more than the sale of his dad’s house.  Additionally, contract law fails miserably and works against Brother.

    Fourth lesson in preventing a trust breach

    Certainly, we could find more, but the final lesson I believe goes without saying when working through a Minnesota trust breach is:  attend scheduled court hearings.

    Yes, Brother missed a court hearing.  When a person misses a court hearing, their goals sometimes turns into asking a court to start over.  Yes, a trust breach can start over under rule 60.02  upon asking a court to review:

    1. A mistake,
    2. Inadvertence,
    3. Surprise,
    4. Excusable neglect, or
    5. Any other reason justifying relief.

    Prevent trust breach in Minnesota

    I believe the best step is having a formal discussion to address issues and prevent trust breach.

    Please contact me if you want additional information.

  • What If Your Trustee Dies?

    What if your trustee dies?  Between you and me, I would much rather be in the position of worrying about a trustee dying versus your death.  Thus, perhaps working through the situation where the trustee dies is not as bad as it might first appear.

    If a trustee died and you need help, please contact this law office.

    If a trustee dies, who is the trustee?

    The first issue is determining who is the active trustee.  A trustee is similar to a personal representative discussed in previous postings.

    Generally, a person who is still alive and owner of a revocable trust is their own trustee.  In this situation, if a trustee dies, it is typically worrisome only if the trustee was your primary backup trustee.

    On the other hand, if the primary trustee dies, a properly drafted trust document will contain a list of backup trustees.

    Who can serve as a backup trustee?

    The backup trustee will typically be identified in the trust document.

    A backup trustee can be:

    • Spouse
    • A child 18 years of age or older
    • A family member,
    • Friend
    • Certified Public Accountant
    • Attorney
    • Investment Advisor
    • Private Trust Company
    • Bank with trust powers
    • Or, a combination of the persons identified above.

    What if your backup trustee dies?

    If the backup trustee dies, then hopefully the trust document provides a list of successor trustees.  This means the trust document outlines a backup to the backup.

    Yes, an option for people to assure security in their trustee selection is to attach conditions or resources to the assigned person.  For example, making it a requirement or duty that your trustee seek affirmation from a CPA or investment adviser.

    Another option is granting or assigning your bank or a trust company to manage your trust on your behalf.

    If my trustee dies, how many backups can you have?

    In Minnesota and to protect against a situation where a trustee dies, Clients at this law office are encouraged to identify as strong list of backup trustees.

    For Clients who do not have any living family members or do not like or trust their family members, one can choose a third party for support.  For example, it is very common for people to seek and identify a trustee like their CPA or a private company.

    On the other hand, if your trust document does not identify a backup or everybody on your list is no longer living, your beneficiaries are stuck seeking a Court for help.

    Help when a trustee dies

    If you need help amending a revocable trust to account for the death of a trustee or any related estate planning document, please contact this law office for help.

  • Why Seasonal Unemployment Stinks

    Why Seasonal Unemployment Stinks

    Seasonal unemployment can stink for non-union workers.  I believe you have an opportunity to fight back.  Today, I will focus on my non-union friends.  

    Yes, unemployment rules are different for non-union workers versus union workers.  Even more significant, non-union workers can be categories as:

    • Agricultural workers and
    • All other workers.

    Provided you are able to categorize your job status, I hope you find the following outline exclusive to workers concerned they will be laid off after the busy season helpful to your unemployment process.

    Rule 1 why Seasonal Unemployment Stinks

    You already know this, but I will express it anyways.  Having a seasonal job stinks because it is impossible to guess when the job will end.  Unless there are extenuating circumstances, I believe a worker can improve the likelihood of being eligible for benefits when they work every possible day.

    In other words, do not end your job prematurely because you know the job will end sooner than later or somebody stated the job was going to end.  Instead, stick it out until they [your employer] specifically states you cannot work and you are not allowed to come back.

    Rule 2 why Seasonal Unemployment Stinks

    The second reason why seasonal unemployment is no fun is because workers sometimes want a more permanent job that pays the same or more than their last job.

    Minnesota unemployment rules for seasonal unemployment suggest a worker likely has to accept a temporary job.  However, a worker’s skill, job market and wage history impacts the worker’s eligibility.

    Rule 3 why Seasonal Unemployment Stinks

    The third reason why seasonal unemployment stinks is because certain payments delay unemployment benefits.

    Obviously a seasonal worker finding themselves out of work needs benefits as soon as possible.  Unfortunately, these types of payments delay benefits:

    • Vacation pay,
    • Sick pay,
    • Personal time off pay, and
    • Separation pay.

    In my experience, some workers do not know why or how much money to expect in their paycheck.  Sometimes, workers get pay checks weeks or months after their job ended.

    Long story short, keep accurate records and do your very best to answer weekly eligibility questions with precision.

    Other Minnesota laws impacting Seasonal Unemployment

    Yes, there are many other laws that impact a worker’s eligibility.  I encourage all seasonal workers in Minnesota to familiarize themselves with the following:

    Those needing Help

    Before the summer jobs come to an end, please share this article with others.

  • Does Unemployment Nice Really Work?

    Does Unemployment Nice Really Work?

    Unemployment nice is a term I use to describe a losing strategy used by many applicants trying to acquire unemployment benefits.

    Being nice to your pet builds a strong bond.  Being nice to the unemployment office helps when you need administrative assistance.  However, using unemployment nice is not an effective legal strategy when you are trying to prove your eligibility.

    Unemployment Nice does not work

    Look, every piece of information an applicant gives to the unemployment office needs to support your eligibility for benefits.  Instead, you may inspire an audit from the unemployment office by:

    • Being whimsical,
    • Describing your medical history,
    • Identifying an error or mistake,
    • Telling them about your vacation,
    • Explaining your educational aspirations,
    • Asking if certain income will count against your wages,
    • Or telling the unemployment office about your job application process.

    Because most people do not like the idea of being audited or scrutinized, please be ready for anything and everything.

    Unemployment Nice with your Judge

    Absolutely, every person should be nice to their unemployment law judge (“ULJ”).  Unemployment nice is different from being polite.  Time and time again I hear or see applicants trying to play the nice card as if it will help them acquire benefits.

    Yes, most unemployment law judges will see right past this and you need to have your ducks in a row.

    Unemployment Nice with administrative stuff

    Yes, be nice to the people answering phone calls to assist you with access to your unemployment account or password.  But, restrict the temptation to tell your story just to see what “they” might think.

    Instead, access free resources and conduct your own legal research by comparing your case to publicized decisions.

    Unemployment strategies that work better

    If you need help figuring out what to do, what to say, correcting an error or combating a lie, please consider contacting me for help.