Licensed Fiduciaries

March 23, 2014

Licensed Fiduciaries—I’m one—are individuals and business entities who hold a license, issued by a division of the Arizona Supreme Court. (My law firm is also a Licensed Fiduciary, and I am the responsible party under its license.) We provide services to people in need of assistance with personal and financial matters, and administer estates.

Courts appoint guardians, conservators, and personal representatives. A court will appoint as a guardian a person named in a will, and will also appoint as a personal representative someone named in a will. These individuals can charge a fee for their services, so long as they have been identified in the will. So, nothing about having Licensed Fiduciaries interferes with an individual’s wishes, most of the

Continue reading...

Law Lessons From Abraham Lincoln

March 19, 2014

The 150th anniversary of the Civil War passed three years ago. It brought to mind another “Attic-Moment” involving Abraham Lincoln. Notes for a Law Lecture, written by Abraham Lincoln, are dated July 1, 1850, making them, now, more than 160 years old.

Age aside, the Notes are worthy of attention for attorneys and non-attorneys, for Mr. Lincoln focuses on four major, timeless themes:  Diligence; Litigiousness; Fees; and Honesty. He also offers a quick digression on the limited value of the silver tongue.

Mr. Lincoln calls diligence “the leading rule” for lawyers. Arizona attorney discipline reports bear out this opinion, as many modern-day discipline problems relate to a lack of diligence.[1] Mr. Lincoln offers several

Continue reading...

Should Justice Ruth Bader Ginsburg Retire?

March 17, 2014

Erwin Chemerinsky. Founding dean at the University of California, Irvine School of Law. Taught at Duke and USC. Wrote The Conservative Assault on the Constitution, which offers non-constitutional scholars lucid lessons about federal court actions over the past several years, and how they have further the Right Wing agenda. (Has also written many law books for law students.) Spoke at the Tucson Festival of Books in 2011 or 2012. (Losing track of years means nothing more than “losing track of years.”)

Yesterday, the Los Angeles Times published an op-ed by Dean Chemerinsky titled Much Depends on Ginsburg. In the piece, he argues strongly that Justice Ruth Bader Ginsburg needs to resign at the end of the Supreme

Continue reading...

Trusts

March 17, 2014

Trusts. Lots of varieties, and lots of mystery. Here’s some basic information.

Trusts exist for many reasons, most of them bound up in estate planning. Trusts vary in terms of their purposes and terms, but they all have about them a core concept:  they are tri-party agreements that involve fiduciary duties.

A tri-party agreement involves three parties. A trust always has at least one settler/trust, at least one trustee, and at least one beneficiary. The settlor—trustor is a synonymous term here—creates a trust by depositing now, or promising to deposit sometime in the future, often at death—money or other assets. The settlor is also almost always the person who has the trust agreement drafted.

Every trust has at least

Continue reading...

Jersey and the Fifth Amendment

March 13, 2014

The Fifth Amendment to the U.S. Constitution states:  “No person … shall be compelled in any criminal case to be a witness against himself.” In New Jersey, a battle has developed over a legislative committee’s demand for emails from Governor Chris Christie’s people in connection with the Bridgegate investigation. (Alas, 40+ years after Watergate, we finally have another water-related “gate.”)

Absent a grant of immunity, no one can be forced to testify about matters if the testimony may be self-incriminating. But what about emails and other records, created long before the investigation?

I have had one case in my 32+ year career that involved Fifth Amendment claims, and it revolved around a waiver of those claims. So, I’m no

Continue reading...

Marvin Brandt Beats the USA!

March 10, 2014

Here’s NPR’s March 10, 2014 report on Marvin M. Brandt Revocable Trust v. U.S., titled Family Trust Wins Supreme Court Fight against Bike Trail. The case is all about railroads and easements, but it’s also about consistency.

Chief Justice John Roberts wrote for an eight Justice majority, with no concurring opinions. He describes the effort to build a transcontinental railroad, the giveaways from the federal government to the railroads, to allow the railroads to fund the construction of the rail beds and tracks (and make very wealthy the likes of Crocker, Gould, Harriman, Stanford, etc.)

The case focuses on an 1875 law that limited the railroad giveaways, due to public unhappiness with the robber baron wealth. Basically, the

Continue reading...

Personal Representatives, Executors, and Executrixes, Oh My!

March 9, 2014

Personal Representative is the gender neutral substitute for executor and executrix. The terms identify the individual or entity with responsibility for managing and distributing a decedent’s estate. The only proper term to be used in Arizona is Personal Representative, as Arizona adopted the Uniform Probate Code in 1972, and it uses the gender neutral term. If you have a will that refers to an executor or executrix, the terminology will not affect the process, but if your will uses one of the old terms, it may be time to give the will a look-see, and make sure it’s up-to-date.

So what does a PR do? First, if the decedent dies with a will, the PR will likely be the

Continue reading...

Arbitration. Mediation. Settlement Conference. Huh?

March 5, 2014

Arbitration. Mediation. Settlement conference. The same thing? Different? And the answer is (and, attorneys, be quiet):  YES!

Arbitration

With arbitration the parties pay the arbitrator—sometimes there are three—to decide the case, instead of letting the judge—paid with tax dollars—handle things. The decision may or may not be binding; in most instances involving non-binding arbitration, however, the appealing party may be subject to a sanction if the outcome in case #2 is not better by some amount than the arbitrator’s decision. (Some Arizona courts use this system to deal with smaller cases.)

Arbitration clauses show up often in boilerplate consumer contracts. The U.S. Supreme Court loves arbitration, even though—or maybe because—the process costs lots of money and deals poorly with

Continue reading...

The Rabbi, the Airline, and the Supreme Court

March 3, 2014

Got miles? No, not milk, miles!

The U.S. Supreme Court has before it for a decision Northwest, Inc. v. Ginsberg. The case was argued on December 3, 2013, and will almost surely be decided by the end of the Court’s 2013-14 Term.

Rabbi S. Binyomin Ginsberg got fired from the Northwest Airlines frequent-flyer program for calling too often and complaining too much. No more miles, so he sued.

The case involves the Airline Deregulation Act, as amended as recently as 1994. Basically, the law preempts, or bars, claims brought by individuals that relate to “a price, route, or service of an air carrier that may provide air transportation … .” Rabbi Ginsberg sued, claiming Northwest breached its contract with

Continue reading...

Will Basics

March 2, 2014

A Last Will and Testament provides your instructions about your estate, both with respect to administration and distribution. Wills also often include instructions about minor children. If you have minor children you need a will, for sure. Even if you don’t have minor children, having a will should be on your bucket list.

A will addresses administration most directly by identifying a Personal Representative. (Personal Representative is the gender neutral substitute for executor/executrix, and became part of the proper terminology in Arizona when the state adopted the Uniform Probate Code 40 years ago.) The Personal Representative has as his or her tasks, in simple terms, gathering and distributing assets after paying creditors. There’s more to it than that, but those

Continue reading...