Breach of Contract – Fiduciary Duty

Business Contracts Lawyer Sacramento, CA

Fiduciary duty is defined as a legal relationship between two or more parties. The party with the ‘duty’ is called the fiduciary and the other party is the business or person that benefits from the duty. This relationship is mutual among the partners who owe a duty to their business and each other. Fiduciary duty requires each partner to be honest, fair and loyal to the business.

Each partner is required to act responsibly when directing operations for the business. Partners must be transparent with any relevant information to the participants within the scope of fiduciary duty.

The duty begins when the partnership is formed and remains until the dissolution and settlement of all partner affairs. A partner can choose to leave a partnership unless a new contract is negotiated to continue the fiduciary duty.

When there is a disruption of trust among the partners in a fiduciary trust, that is considered a breach of fiduciary duty. This happens when one of the partners does not uphold its financial responsibilities to the partnership, typically resulting in a financial loss.

Examples of breach of contract caused by breach of fiduciary duty:

  • Keeping important and relevant information or documents from the partnership, resulting in financial detriment
  • Management is negligent
  • One of the partners is involved in insider trading
  • Part of the profits are kept by a partner to which they are not entitled to receive
  • A business opportunity is taken away from the company from a partner for their personal benefit

If you believe this has occurred and you have suffered financial damage because of a breach in fiduciary duty, you may have the right to pursue damages. The following conditions must be met and proven to file a claim:

  • A fiduciary relationship was in place
  • There was a breach in a specific duty owed to you
  • Because of this breach, you are entitled a remedy

The breach that was violated generally determines the remedy you may receive. You may receive monetary damages if one of the partners was dishonest about the amount of profits and neglected to place the earnings in a trust for you. The partner that breached a fiduciary duty to the other partners may able to be removed from the partnership.

The burden of proof is on the partner filing the claim. If you happen to be the accused, your defense is to act carefully to prove your actions fell within the boundaries of your position.

The partner guilty of breach is responsible for losses incurred because of fiduciary beach.  

A business contracts lawyer Sacramento, CA relies on at the Yee Law Group possess the necessary knowledge involving breaches of contract. They are skilled negotiators and have the litigation skills required to protect their clients’ interests in a courtroom setting.

Why Should You Write a Will?

Will Lawyer Sacramento, CA

Creating a will today can help you and your family plan for a tomorrow where you are unable to support them in person. Life is full of change and surprises, and tomorrow is never guaranteed. The consequences of passing away without a will could mean your children do not have guardians in place that you trust, your estate could go to the wrong person, or money you intended to give to charity might not go to the places you had hoped. That is why hiring a will and estate lawyer can be a great asset for planning for the future. A caring attorney can help you go over the details of what you hope to leave to family and loved ones when you pass away, ensuring that they are taken care of when you are no longer here.

How Your Property Passes When You Die

When you pass away, your property must go somewhere. If you do not have a will in place, then a court can make that decision for you, and without any direction, it can be given to the wrong person. There are usually two types of passing property:

  • Probate Property
  • Non-Probate Property

Probate Property. If you have property and assets that do not have a beneficiary designation, they must go through a court in order to get to the new owners.

Non-Probate Property. This type of property can go to the designated owners without having to go through court proceedings.

Taking Care Of Minor Children

If you have children under the age of 18, having a will can help direct who will be the guardian of these children and who will receive assets when you pass away. Having a will in place can help determine where your childrens’ share of your assets and money go while they are still underage. A will can decide who you trust to take care of your children in the event that your spouse has also passed, and it can help determine who will take care of finances as well.

Donating To Charities

If you are passionate about charities, having a will can also help donate specific portions of your estate to a charity that you feel strongly about. In doing so, it can reduce the burden of the estate’s tax.

If You Are a Small Business Owner

If you own a small business or are an entrepreneur, you might be worried about what will happen to your business when you pass away. A will can be a great place to outline and define a plan that makes you happy when you leave behind a business you have worked hard for. It could mean the difference between a successful business after you pass away and a failure.

How Can an Attorney Help?

Tomorrow is never guaranteed for any of us. By working with a will lawyer Sacramento, CA trusts at the Yee Law Group, you can be assured that your loved ones will be taken care of after you have passed on. Don’t delay any more in creating your will. Call a law office today to schedule an appointment.

 

How to Prevent Estate Litigation After Divorce

Estate Lawyer Sacramento

Divorce is not an easy thing to go through. It can be tiresome emotionally, mentally and financially. There are likely going to be plenty of tasks on your to-do list, that you’ll be slowly checking off in the weeks or months to come. One of those tasks should be to update your estate plan. The last time you may have visited your estate plan is when you got married to your spouse, but now things have changed and your will should reflect the divorce. If you do not update your will based on new life changes such as a divorce, your assets may have to go through the grueling and prolonged process of estate litigation.

Here are some things to consider as you are separating from your spouse, that can help you create an estate plan that truly reflects your wishes:

Update Your Health Care Proxy

If you were to be in a car accident and put into the Intensive Care Unit, who did you choose to make medical care decisions for you? In many cases, a person lists his or her spouse as the person to take on this crucial role. You may not want your former spouse to have this responsibility after all, if that situation were to ever arise.

Appoint a New Power of Attorney

The person you choose to be the durable power of attorney, may have access to your accounts and assets. If the divorce is not amicable and you do not trust your former spouse, you need to choose a new power of attorney as soon as possible. Visit with the attorney who helped you create your will in the first place, so he or she can advise you on how to properly appoint a new person.

Review the Wishes in Your Will

If the state you live in permits you to execute a brand new will, you may want to do so as a top priority. If you do not want your former spouse in charge of your estate after you have passed on, remove him or her as the will executor.

Leaving Your Spouse Something

If things between you and your former spouse are amicable enough, you may find it in your heart to want to leave him or her a part of your legacy. In some states in fact, you may not be able to totally disinherit your spouse. By leaving at least something for your former spouse from your assets, he or she is probably less likely to contest your will and fight for a portion of your assets after you have passed on. If you want to decrease the chances of your wishes going through estate litigation, you may want to leave behind even a little monetary award, property or other belonging for your former spouse.

Have Your Attorney Look Over Document

Once the divorce is finalized and you have made changes to your will, have your estate lawyer Sacramento relies on at the Yee Law Group review the documents to ensure everything is written correctly. There may be very specific steps you have to take in order to create an entirely new will, that is both legitimate and legally binding.

cemetery path bench

Can I Challenge a Will or Estate Plan in Court?

What do Aretha Franklin, Michael Jackson, John Denver, Prince, Heath Ledger, Martin Luther King Jr. and Howard Hughes have in common? Certainly, each has contributed to American culture in profound ways. But they also share the distinction of having passed away without first drafting an enforceable will. When a loved one dies without articulating explicit desires related to the care of his or her estate, the resulting aftermath can be chaotic. And even if a loved one has created an estate plan, if he or she dies without having updating that plan over time, it may not reflect accurate estate-related wishes at the time of his or her death.

The law does have procedures in place which allow judges to pass along property from the estate of a deceased individual to his or her descendants and others protected under the law. But not all estates are ultimately handled in a straightforward manner. Numerous factors may impact the process of probate, which is why judges are empowered to evaluate important information and claims brought forward by those who may be invested in the outcome of how an individual’s estate is ultimately processed.

If you have an interest in a loved one’s estate and believe that the estate is not being handled properly, you may be able to bring a claim in court. You may be able to enforce your inheritance rights, insist that your loved one’s property be handled in a specific way or stand in opposition to another individual’s legal claim. Please consider connecting with our firm so that we may advise you of your available options. Once we learn about your situation, we will be able to answer any questions you have about the law, probate claims and/or our approach to representation.

It is generally a good idea to reach out to an estate planning and probate attorney as soon as you suspect that something is not right with the way a loved one’s estate is being handled. Legal options tend to become more limited over time, as the law generally only allows estate-related challenges to be filed for a certain length of time following the death of an individual.

It is also worth noting that not everyone has legal standing to challenge the contents of a will/estate plan in court. However, if you are invested in a loved one’s estate and believe that you may be entitled to inheritance rights and/or a say in how that loved one’s estate is processed, it is best to seek legal guidance before determining that you should or should not move forward with legal action.

Estate Planning and Probate Assistance Is Available

If you have concerns regarding the estate of a loved one, please consider reaching out to our firm today. We have extensive experience related to the processes of estate planning and probate and we would be happy to speak with you about your situation.

Legal options in estate-related cases are not always straightforward. However, ensuring that a loved one’s wishes are properly respected and enforced is a noble goal and a goal that the law ultimately aims to achieve when possible. Once we learn about the details of your unique circumstances, we will be best placed to guide you as you make informed decisions about your situation. Regardless of whether you ultimately choose to take legal action, we are here to help in whatever way we can.

Steps To Remember When Writing a Will

Estate Planning Lawyer

Writing a will can be daunting. Most people want to put off thinking about and planning around their mortality. However, preparing a will that is well-written and thought out can show exactly what you hope will happen with your possessions once you have passed away. A will is a unique document that can be used to speak on your behalf after you have passed, and it can make your wishes clear if familial disputes arise. To get started on your will, there are some simple steps you can take to help you through the process and ensure it is completed the way you want it to be. Read on for more information.

  1. Deciding How to Write Your Will. Many people believe that they need to hire a lawyer to walk them through the steps of creating a will to make it legal. This is not the case. Hiring a lawyer is completely up to you and your comfort level. If you would like help walking through the steps of creating a will, advice on legal jargon, or someone to go over your will to make sure you have left nothing out, a will or estate attorney could be very helpful. Otherwise, you can find different software or online DIY-wills that are reputable and can get the job done.
  2. Choose Your Executor. When you pass away, the executor is someone you have entrusted to make sure your will is carried out. This can be a family or friend, or a trusted third party like a banker or attorney.
  3. Selecting Your Beneficiaries. When you pass, your estate, belongings, and money need to go somewhere. Creating a will can help you determine and select exactly who you want to receive your belongings and how much they receive. This is not typically a lengthy process (it is usually going to be a spouse and your children or close family members), but it is important to make sure that whoever is selected is kept up-to-date. For example, if you get a divorce, it is important to take out your ex-spouse if you do not want them to receive anything from your will.
  4. Picking a Guardian For Your Minor Kids. If your spouse is no longer alive to take care of your kids when you pass away, you will want to name a guardian for your minor children. Although you do not need to ask their permission, these should be people you trust to raise your child.
  5. You Must Have Two Witnesses. When you finish your will, you need to have at least two witnesses sign the will. The witnesses you choose cannot be people who stand to get anything from your will and they must be at years or older. Witnesses can also be useful after you have passed away to testify in court if your will is being contested.
  6. Find a Safe Space for your Will. Keep your will in a place that is safe from the elements, secure from being stolen, but is accessible to your family once you have been gone to ensure a speedy process after your passing.

What Next?

Writing a will can sometimes be confusing, but following the steps above can help you get the process started right. If you have any further questions about writing a will, get in touch with a wills lawyer St. Peters, Missouri right away.

 


 

Thank you to our friends and contributors at Legacy Law Center for their insight into estate planning and writing a will.

Estate Planning for Same-Sex Couples

Estate Lawyer

Just like opposite-sex couples, same-sex couples can benefit greatly from even the simplest estate planning. Same-sex couples are now being offered opportunities and protections that were previously unavailable to them. With the Supreme Court ruling in favor of state recognition of same-sex marriage in 2015, estate planning is on the rise for couples in same-sex marriages.  Below are some considerations for same-sex couples to keep in mind while planning for the future.

Previous Marriages

Before the Supreme Court legalized same-sex marriage, each state had different laws recognizing varying degrees of same-sex unions. A couple that was legally married in one state, may have not had their marriage recognized in another state. Often couples who had moved states would break-up, assuming their marriage was invalid anyway, and never legally divorce. If this sounds like you, make sure you research whether your previous marriage is still valid.

Comprehensive Estate Plan

A comprehensive estate plan is more than just a will. To truly care for and protect your family, consider creating the following documents:

  1. Last Will and Testament: A complete Last Will and Testament should clearly outline the following:
  • The Executor or Personal Representative
  • The Beneficiaries
  • Instructions for How and When to Distribute the Assets
  • Guardians for Minor Children
  1. Financial Power of Attorney
  2. Healthcare Directives: Healthcare directives are a compilation of three specific documents:
  • Healthcare Power of Attorney
  • Living Will
  • HIPPA Authorization

Consider a Living Trust

A living trust is an entity created during the Grantor’s life time to hold and manage assets. After the Grantor’s death, the assets can be distributed directly to the Grantor’s beneficiaries without having to go into probate. Benefits of a living trust include:

  • Avoid Probate: Unlike a will, living trusts are not subject to the legally lengthy and often expensive probate process.
  • Less Stress: Avoiding probate will relieve your loved ones of undue stress during what will already be an emotional time.
  • Privacy: When a will goes through probate, it becomes a public document. Because a living trust does not go through that process, it protects your assets and wishes from becoming publicly accessible.

Protect the Children

Sometimes with same-sex parents, only one parent may be legally recognized. Depending on state rules, same-sex couples may want to consider adoption, or at the very least, detailed estate planning that will protect both the parents’ and the children’s interests as a family unit.

Designate Beneficiaries

Perhaps the easiest way to plan for your estate is to name beneficiaries on all accounts where such a designation is possible. In general, this means that the assets held in that account will pass to the person(s) you name upon your death. Common accounts that allow for beneficiary designation include:

  • Bank Accounts
  • Retirement Plans
  • Life Insurance Policies

If you and your loved one are interested in creating an estate plan, contact an experienced estate planning lawyer Phoenix, AZ relies on today.

 


 

Thank you to our friends and contributors at Kamper Estrada, LLP for their insight into estate planning.

Lawyers Responsibilities

Estate Planning Lawyer

What is a lawyer? The definition is a person who practices or studies law; an attorney or a counselor. Lawyer’s play an important role in society, you could consider them like a guardian of the legal system. Maintaining the highest standards of ethical conduct and function of our legal system. One of the many functions lawyers provide to clients is an understanding of their legal rights. An attorney will insert themselves into the shoes of their clients and will fight tirelessly to advocate for their clients rights. An attorney acts as a negotiator, seeking a result that is agreeable for their client and the other parties involved.

When you think about coming to a law office for assistance you should keep in mind that an attorney will always have your best interest in mind.  You may have heard of attorney client privilege in movies or on television but it is definitely a real thing. When you are represented by an attorney he/she should never discuss your case with outside parties. Everything your attorney or law office should be doing is to protect its clients rights within the boundaries of the law. Nothing is more important than a clients privacy.

Communication is a key component in the legal world. There are often several different equally important moving parts in any case. Your attorney or legal team should maintain communication with you as their client. An attorney will try to communicate as often as possible. There are several different formats in which a lawyer can communicate with you such as telephone, e-mail, and/or other secure electronic messaging services, these are just a few ways an attorney will try to keep you updated on your case.

At the end of the day an attorney is willing to go the distance for their client. An attorney can only perform his/her duties with complete and total honesty from their client. If the client isn’t honest and upfront with their attorney the attorney cannot prepare properly.  It takes two to tango though and if the attorney isn’t honest with their client that of course will build a distrust and frustration against the attorney.

Information, confidence and honesty are the keys to any case. Working with an criminal defense lawyer Arlington, TX can often be an uncomfortable and uneasy process, however if you work together as team you can find it to be nice process win or lose. An attorney cannot guarantee the outcome of any case. They can work with their client to make the process as easy and comfortable as possible.

 


 

Thank you to our friends and contributors at Brandy Austin Law Firm, PLLC for their insight into personal injury claims and lawyer responsibility.

I don’t want my heirs to have to go through the probate process. Is there another option, such as a living trust?

Probate Lawyer Sacramento, CA

Estate planning lawyers receive calls everyday about the probate process and how to avoid it. What they explain to them is that a living trust may be a good option to avoid probate.

That is the short, simple answer. In truth, whether or not you should spend the time and money to draw up a living trust depends on the circumstances of your situation. Some people could benefit from a living trust, and others will not. Then there are those who fall in between the two sides. To better understand your own situation, and whether it is best suited to a living trust, you should consult a trust lawyer.

I don’t want my heirs to have to go through the probate process. Is there another option, such as a living trust?

It’s understandable to not want your loved ones to have to go through the complicated process of probate, especially when they may be trying to cope with your loss. If you would like to lift this burden from them, a living trust might be an option. The following are a few ways that your assets and property can be transferred to your heirs without going through the probate process.

  • Distribute your assets as gifts prior to your death.
  • Place your assets in joint tenancy with the right of survivorship to your spouse, children, or other heir.
  • Create a pay on death bank account.
  • Name an heir on an insurance or retirement account.

A living trust can also be used for any asset, in addition to the above. It offers more flexibility than a will and gives you the chance to name alternative heirs just in case a beneficiary dies.

The Negative Side to a Living Trust

Living trusts are not perfect. They will take more time to set up, and require ongoing maintenance. Modifying them can be tedious and expensive. You will almost certainly need a trust lawyer to handle all of these tasks for you. A living will should also be in place, and acts as a backup to the trust.

Is a Living Trust Right For You

Trusts were once associated with wealthy people, but today people of many backgrounds choose a trust over a will. If the following apply to you, a trust might be a good idea:

  • You have a large estate valuing over $150,000
  • You expect to die in the next 10-15 years
  • You would like to leave very specific details to your heirs
  • You have an heir with special needs
  • You own a business

When You Are Married

If you are married and both you and your spouse plan to leave all or some of your assets to one another, it should be possible to avoid probate and not have a trust. However, if you are concerned about an impending divorce or separation, you may want to consult a probate lawyer Sacramento, CA trusts at Yee Law Group for further advice.

What happens to firearms in an estate?

Estate Planning Lawyer Roseville, CA

Many people are lawful firearms owners. They may own guns for personal protection, as part of a collection, or for outdoor huntings. The legal gun owners may take the necessary precautions to ensure their registration and licensure is accurate and up to date. They may store the firearms properly and treat them with the proper safety measures. However, when firearms are included in an estate, questions could be raised.

If you are the personal representative or executor of an estate, it will be your responsibility to ensure firearms are handled within the scope of the state and federal laws. In general, whenever firearms are included in a will, trust, or estate planning tool, you should consult an estate planning lawyer for advice.

Potential Problems With Passing on Firearms in an Estate

Unlike jewelry, art, or other assets, you may be be unable to give a beneficiary a firearm, even if it has been written in a legal will. Some situations would be illegal, for example, if the beneficiary was a convicted felon. Should the personal representative of the estate distribute a firearm to a convicted felony, who is also a beneficiary, he or she could be criminally prosecuted. Likewise, if the personal representative is a convicted felon, they cannot distribute firearms to any beneficiaries. If any of the above situations apply, an estate planning lawyer should be consulted as soon as possible.

Careful Considerations

As an estates’ representative, you should take time to review all estate planning documents. Look for a gun trust, or another document that has to do with firearms. Various state and federal laws regulate the sale and transfer of all guns; therefore, the gifting process of firearms is rather complicated.

If you handover a gun in the wrong way or to someone who is not legally able to have a gun, you, as the personal representative, could be liable. Furthermore, if there is no plan on how the firearms should be distributed, they must be disposed of in a certain way.

The National Firearms Act

If the firearm, or firearm accessory, is covered by the National Firearms Act, all federal rules associated with this act must be followed. These rules pertain to the transfer of the gun and any transfer taxes. Examples of firearms and accessories included in the NFA are machine guns, grenades, and silencers.

All firearms in the NFA must be registered with the federal government. Whenever a transfer takes place, the government must approve the transfer and registration. If you are the representative, you will need to complete a special form from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

The above process is complex which is why many people choose to create a gun trust. This special type of trust allows multiple people to possess and use the firearms included in the trust. These firearms are owned by the trust, and the possession of them can move swiftly to a beneficiary following the current possessors death. The formal transfer process does generally not need to be completed. If you find a gun trust in an estate, ask an estate planning lawyer whether or not it is valid and intact.

Legally Transferring the Firearm

When the decedent possessed a gun that was not regulated by the NFA, the transfer to a named beneficiary is often easier. Before the transfer can begin, the following must be considered:

  • The beneficiary is at least 18 years of age
  • The beneficiary has obtained to proper license
  • The beneficiary is not prohibited to own a firearm

Some states do not require a gun owner to register certain guns, like rifles and shotguns; however, it may be a good idea.

Final Considerations

The following are some final considerations that may or may not apply to your situation, depending on what state the firearm is registered, or located, in.

  • If a state makes it a felony to possess a firearm without a license or registration, the personal representative may only be able to possess it for a short period of time in order to sell, transfer, or otherwise dispose of it. After this time has passed, the firearm may need to be transferred to law enforcement who will release it upon request, or destroy it.
  • Some states require a representative to file a separate inventory of any firearm and firearm accessory. Usually this inventory is not made public.
  • Beneficiaries should be told about the inheritance of a firearm as soon as possible so as to obtain the necessary license, permits, and/or registration.

Whether you are a gun owner or are a representative of an estate that involve firearms, you may want to speak with an estate planning lawyer Roseville, CA trusts at Yee Law Group who can help you to remain compliant with all laws.

What if I don’t probate a will?

Probate Lawyer Sacramento, CA

When someone dies with a will, a person or professional entity should be named to serve as the executor. The executor has a duty to ensure all debts have been paid and any remaining assets are distributed to the beneficiaries as intended.

Many wills are written are years several years before the death of the testator. As soon as the testator dies, the executor should file the will in court, with the help of a lawyer, to begin the probate process. However, this is not always so easy. It is possible for the executor to have died first, and the will never changed, or for the executor to decide that they don’t want to role. In either situation, the will is left unfiled.

State Laws

The executor of a will is not legally required to perform their duties, even if they promise to do so. However, this does not mean that the executor can ignore a will by placing it in a drawer to forget about it. Nearly all states have laws that require a person who is in possession of an original will to deposit it at the county courthouse nearest to the place of which the deceased lived and died. This should be done between 30 days and 3 months, depending on the laws of the state.

Failure to File for Probate

If the executor fails to file the will for probate within the time limits, serious consequences can result. Although failure to file is not illegal, and will not result in criminal charges, most states do allow anyone affected by this decision to file a lawsuit against the executor.

It is possible for criminal charges to be filed when the executor fails to take a will to probate because they intended to conceal the will for their own financial gain. An example might be when a great aunt, with no family other than a grandson, decided to give her entire estate to a charity rather than her only family member, and he did not file the will. Under the laws of intestate, the grandon (assuming no will existed) would inherit his great aunt’s estate.However, because there actually was a will, the grandson could face charges.

Unpaid Bills and Debts

When someone dies, there is a good chance that they will have unpaid debts. By filing a fill for probate, the creditor has a limited time to make a claim against the estate. Usually this is four months from the date of which the executor is officially approved. If the creditor files a claim after the deadline, they will likely be unable to recover the debt. If probate is not opened, the creditor typically has one year to make a claim against the estate.

It it relatively common for a will to go unfiled when the estate is considered to be insolvent. This means that there is more debt than money or value in assets. Typically, no one will be legally obligated to pay the debts or maintain communication with creditors. Sometimes, in this situation, the best thing to do is to file the will and no open probate. You can talk with a probate lawyer about this during a free consultation.

A Will with No Value

Probate is not always necessary. In fact, if a will was left with nothing of value or because all valuable assets were put into a joint account or trust, probate may not be necessary. It is important to remember that filing a will and opening probate is different.

Administering an estate is time consuming, expensive, and often confusing. If you would like help, call a probate lawyer Sacramento, CA relies on at Yee Law Group today.