Nielsen Paralegal & Legal Document Assistance


A trust is a written instrument by which the settlor declares that upon a certain event, such as his disability of death, another person known as the trustee, is placed in charge of administering the assets and financial affairs of the settlor. Trusts are usually declared by a single person or jointly by a married couple. Typically, a trust will provide that upon the mental incapacity or death of one spouse, then the other spouse will act as trustee, and after the mental incapacity or death of both spouses, then some other person, typically an adult child, family member, or trusted friend will act either jointly or singularly as successor trustee. The trust can describe the duties of the trustee to provide for the management of financial affairs and the care of the settlor during his lifetime and provide for the disposition of assets, such as real property and financial accounts, after the death of the settlor(s), e.g. distributions to children, charities, and other beneficiaries.
The drafting of trusts requires that attention be given to the specific needs and instructions of the settlor. Provisions in the California Probate Code establish statutes that govern the duties of trustees and the rules pertaining to the administration of trusts. For example, a trustee has a fiduciary duty (a duty of honesty, loyalty, and full disclosure) while acting in the capacity of a trustee, and he cannot misuse his position for his own personal benefit.

Estate Planning is the practice of planning for the disability or death of the client and the succession of property and business interests. Estate Planning includes the preparation of documents such as a trust, Power of Attorney, and an Advance Health Care Directive. Estate Planning also concerns the disposition of retirement assets, such as IRA and pension plan accounts. Estate Planning addresses the issue of minimizing the Federal Estate Tax. Estate Planning can protect the surviving spouse and the children of the parties, including children by prior relationships of each party. Careful drafting is required to meet the requirements of each client. There is not an all-purpose estate plan or all-purpose trust for all persons.

An Advance Health Care Directive allows a person, known as the agent, to make healthcare decisions for another person, known as the principal, if the principal is unable to do so due to illness or incapacity. An Advance Health Care Directive can describe the type and manner of medical care the principal wishes if he/she cannot make decisions for himself/herself.
A power of attorney is a document by which one person, known as the principal, grants to another person, referred to as the agent, the power to make decisions and enter contracts on behalf of the principal. A power of attorney can include provisions that make the power of attorney durable. In other words, the power of attorney will continue to be effective even if the principal becomes mentally incompetent. An advantage of a durable power of attorney is that it may avoid the necessity of a conservatorship for a person who has become mentally incompetent. A power of attorney can be drafted so that it is either narrow or broad in scope. For example, the power of attorney may only give the agent a power to deal with a particular business or a particular transaction, or it may be limited to contracts concerning a particular parcel of real property or particular items of personal property. The power of attorney can be drafted with broad provisions allowing the agent to buy and sell securities, to purchase or sell real estate, or engage in almost any other transaction on behalf of the principal. There are other statutes governing the creation of a power of attorney for healthcare decisions.

The most common type of trust is a revocable trust, established by one person or a married couple, who are referred to as either "Trustor(s)" or "Settlor(s)." The trust is typically drafted to be completely revocable or modifiable at any time by the settlors. After the death of the settor(s), the trust becomes irrevocable and the assets of the trust are distributed in the manner set forth in the declaration of trust, usually to the settlors' children or other named beneficiaries. The settlors, while mentally competent, usually act as trustees (administrators) of the trust. Then upon the mental incapacity of one or both settlors, a successor trustee assumes the position of trustee, which is typically one or more of the settlors' adult children.

After the death of the settlors, beneficiaries, heirs, and children of the settlors have the right to obtain information concerning the trustee's administration of the trust. The trustee is required to serve a notice concerning the administration of the trust when the trust becomes irrevocable by reason of the death of one or more of the settlors, a change of trustee of an irrevocable trust, and under other circumstances. Probate Code §16061.7. The notice requires a warning that the person receiving the notice has time limits in which to contest the trust. The notice generally must be served within 60 days following the occurrence of the event requiring service of the notification.

Additionally, a trustee of a trust that has become irrevocable has a duty to keep the beneficiaries of the trust reasonably informed of the status of the trust and its administration. Probate Code §16060. Generally, the trustee must provide copies of the trust to any beneficiary upon request. Probate Code §16060.7.

They can only provide substantive legal support under the direction and supervision of an attorney. A paralegal who provides legal services to the public is committing the unauthorized practice of law. (I know, I’ve said that before. I can’t emphasize it enough, though. This is something that really gets under my skin. I have no problem with it if such services are allowed by law and a paralegal is working in compliance with those requirements, but that’s not what happens.)

Now before anyone jumps up and down, let me clarify that I am speaking in reference to the paralegal profession in general; each state’s jurisdictional requirements dictate the depth and breadth of the paralegal’s role. In certain jurisdictions, paralegals may have limited authority to appear in certain proceedings – most often those of administrative agencies and tribunals. Moreover, in certain jurisdictions, document preparers (or professionals of similar title) do provide services to the public.

This is different than working as a paralegal. Generally, document preparers are authorized, under very strict requirements, to prepare court-mandated forms for individuals wishing to pursue a legal proceeding in pro per (aka pro se). The document preparer is prohibited from providing any type of advice to the individual, including any advisement or determination of the appropriate forms for the proceeding. You’ll often find that paralegals work as document preparers because of their legal background. They are not, however, paralegals when working in this capacity.>