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I do not want a paralegal, texas, irrevocable trust,

I do not want...

I do not want a paralegal

Lawyer's Assistant: Estate laws vary by state. What state are you in?

Texas

Lawyer's Assistant: What documents or supporting evidence do you have?

Irrevocable trust, ancillary, survivorship agreements, multiple agent POA, certification of trust doc, deeds plus lady bird deed

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Yes, I prefer a well-seasoned estate/trust lawyer

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Answered in 5 minutes by:
5/16/2017
Richard
Richard, Attorney
Category: Estate Law
Satisfied Customers: 56,873
Experience: 29 years of experience practicing law, including tax and estate planning.
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Hi! My name is Richard & I will be helping you today! It will take me a few minutes to type a response to your question. Thanks for your patience!

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Good afternoon. I've been a Texas-licensed lawyer since 1980. How can I help?

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Customer reply replied 1 year ago
Hi Richard,
Background: The family's JTWRS trust has two farms. My brother and I are co-trustees and, according to the trust Ancillary, I have the fiduciary duty to make the farm properties as productive as possible since I am "exclusively responsible for the continued maintenance, management and upkeep of both farm properties. So, to carry out these responsibilities, every year I travel 150 mi (one way) to the farms and stay several months during hay season, and to perform ongoing maintenance issues.. The farms have grown very productive under my management and hard work.Here is my concern .... I bought a country house to "flip" and decided to open a personal bank account near the farm. So, when I would sale hay and get paid by cash or check, I would drive seven miles to the bank and make the deposit. Then in a day or so, I would go online and transfer these funds into the farm trust account 150 miles away.Question: If this considered "commingling" funds? How else could I get this money into the farm trust account. Wiring money is costly.

Good afternoon. Can you provide me just a bit more information? With regard to this personal account you set up, did you use it only for this purpose? Thanks.

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I just wanted to let you know that I will be on a conference call for the next 30 minutes or so. Should you follow up while I’m away, I will address it immediately upon my return. Thank you in advance for your patience. I apologize for any inconvenience.

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Customer reply replied 1 year ago
Please let me clarify ... since I bought the country house, I knew I would be making renovations and paying by check. And wanted to keep these expense separate from my personal account. And I figured it would be a lot easier for me to "safely and securely" transfer and fund the hay money into the trust via online. And not have to hold cash or checks until I got back.
Customer reply replied 1 year ago
As the farm trust funds are what I spend for production costs when I'm at the farm.
Customer reply replied 1 year ago
I personally do not think I was violating any fiduciary duties, as a co-trustee

Thanks for following up. This would not be commingling of funds. The fact that the separate account happens to be in your name does not mean you are commingling it with other funds. Rather, it's a separate account that is only holding funds relating to this one activity. It's only commingling if its mixed with other funds that have noting to do with this activity.

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Customer reply replied 1 year ago
I don't quite follow you. Please be more specific.
Customer reply replied 1 year ago
why don't you give me a quick call

Commingling means combining your funds with funds related to the farms. Here, you are simply using this separate account for funds related to the farms; you are not also putting any funds of yours relating to other matters. Thus, there is no confusion as to what the funds in this account relate to...clearly, they are related only to the farms. Therefore, there is no commingling.

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Customer reply replied 1 year ago
I am, I am putting funds related to renovating my investment country house I plan to flip. I am putting my personal funds into this account, as well as trust-related funds.

Thanks for following up. In that case, there would be commingling. So, you would want to make it very clear which funds are which by your accounting so the funds from each can be easily traced so that a third party could clearly see there was no misappropriation of funds. To be totally safe, going forward, I would suggest you open a separate account for each purpose so that no one can make a claim of any misappropriation.

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Customer reply replied 1 year ago
Ok, thanks, ***** ***** this confirmed as that is what the other co-trustee said (my brother). I plan to close the farm trust account where it is now and open a separate account where the farm properties are situated.Are you familiar with what may be considered "self-dealing transaction" along with tortuous interference with inheritance rights or do I have to start over at square one. This would be a multiple agent POA issue where a duty was breached under a POA. I can't say it was Trust related as the annuity had not been funded into the Trust because of tax reasons.

No...you need not start over. Can you explain the facts regarding this self-dealing and tortuous interference matter? Thanks.

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Customer reply replied 1 year ago
Richard, this has been "eating my lunch" since 2014.
It concerns the other co-trustee, my brother. Needless to say, we don't speak as of two years ago. (I don't want to go into it since he physically abused me (choked me) Christmas eve 2014 ... while what's left of the family, since my father passe, was in the next room)
Ok, here goes ... a little lengthy
Both of us are JTWRS in her trust and multiple agents on POA and were Primary Beneficiaries on a $100,000.00 annuity she bought. I better tell you that she is easily influenced by him and if he says it's white, and it's black, she will say it's white. She 92 and is sound except she doesn't understand business related issues.Ok, annuity termed when they were out of town together. I had already told him we would put this $$ into trust for future caretaking for her. I'm up at the farm and he calls to tell me that she wanted the $100,000.00 to go to his girls. When they returned to HOU, he took her to bank, and bought a life insurance policy in his name with his kids as beneficiaries. Many email exchanges were made - I said that I didn't agree and this was not according to estate plan and we both had to sign as per POA. Whatever I said did not matter ... he said "the money goes to the girls." Mother will say that this was what she wanted but cognitive behavior testing results showed that she didn't understand executive functions (a person who makes a legal decision must have the mental capacity to understand the result of that action.)What law(s) were violated and what would be the consequence? I've shortened this narrative quite a bit.
Customer reply replied 1 year ago
Houston is home base, for state law reference. And I do not want to "drag" her into it.

Thanks for following up. I would contest this based on one or more of the following: lack of requisite mental capacity, coercion, duress, mistake, fraud, and/or undue influence. Based on the estate planning in place and her age, her wishes were pretty clear and in your brother getting her to act adversely to this plan, clearly at least one, if not all, of the elements were present in her making that decision.

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Customer reply replied 1 year ago
Thank you

You're very welcome. It's been my honor and privilege to help you with this. If I can help you in any way in the future, I'll be happy to help. For easy access, my bookmark is: www.justanswer.com/law/expert-legalbeacon/ . Or, simply request “Richard only” in the first line of your question.

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Customer reply replied 1 year ago
I said "thank you" before I got you answer and because you have been so nice and helpful. Let me digest what you said and get back to you.

No worries. Sorry for my confusion. :)

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Customer reply replied 1 year ago
She will say that he did not influence her whatsoever. That it was her decision. And it was her money to do with as she pleased. Without getting tacky with her, how would a good attorney handle this scenario? I guess there's no law that says just because I'm one of the primary beneficiaries, that she "has" to give me the (my) half ...that she gave to brother.What about "breach" of POA? And ... wouldn't the bank also be in violation? I went to them after he bought the policy and told the officer that we had a multiple agent POA. He said to bring it and he would show it to bank attorneys. Few days later, I returned and he said that "they" don't accept multiple agent POAs. I thought it was unacceptable for a bank to refuse such. What's the law in TX? Can they still refuse?I hope I'm not wearing you down with all this but I'm going to have to find a closure somehow.

Having appointed a POA does not negate her authority to act on her own. She retains her authority to act on her own behalf until and unless she is held to be incompetent. You could pursue a guardianship of your mother by claiming she is not capable of making her own decisions. But, that would be putting your mother in the middle of this. It is true that if she's competent and wants to change her plans, it is within her rights to do so. Your burden would be showing one of those elements to prove she did not make this decision freely.

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Customer reply replied 1 year ago
Very succinctly put. It's time to move on.
So, if any other future legally related issues crop up ... how would I get back in touch with you for advice?
Thanks a lot for your expert advice.
I'm signing off ... it's 5 o'clock somewhere ... oops it's 8 minutes past
ciao ***** ***** you.
Pat

My pleasure to help! You can always get me as follows: my bookmark is: www.justanswer.com/law/expert-legalbeacon/ . Or, simply request “Richard only” in the first line of your question. :)

Richard
Richard, Attorney
Category: Estate Law
Satisfied Customers: 56,873
Experience: 29 years of experience practicing law, including tax and estate planning.
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