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Beware the Boilerplate: Lessons from Donald vs. Shelly Sterling

The recent battle between Donald and Shelly Sterling over control of the Los Angeles Clippers basketball team provided a valuable lesson for clients who have created trusts, or are considering creating trusts.  Not only is it critical for those who create trusts to understand the dispositive provisions of their trusts, but they also need to understand the so-called “boilerplate” provisions included in their trusts.

“Boilerplate” typically refers to the standard provisions that are included in legal documents such as contracts, trusts, powers of attorney, and wills.  In trusts, the boilerplate language usually refers to procedural and more general provisions concerning various aspects of the trust and how it is to be administered.  However, in the Sterling situation, the case turned on the meaning and use of certain “boilerplate” language.

The critical “boilerplate” language in Sterling dealt with the way in which a trustee would be deemed unable to continue to act as trustee of the trust.  The court determined that the trust language was clear and its procedures properly followed by Shelly Sterling.  As a result, Donald was deemed incapable of continuing to act as trustee.  This allowed Shelly to proceed and sell the Clippers for $2 billion to Steve Ballmer, which was in the trust’s best interest, and which avoided the NBA seizing control of the team.

One valuable lesson learned by the Sterling case is that those who create trusts need to understand the “boilerplate” language in their trusts, including provisions like the ones at issue in the Sterling case.  These provisions are designed to address situations that may arise in the future, and chances are that some of them will not be applicable to a given person’s situation.  However, there is no way to predict which provisions will become at issue in the future, which is why it is critical for those who create trusts to understand these provisions and ensure that they accurately reflect their intent.

Forget Hamlet. “To Click or Sign, THAT is the Question!”

In daily life today, most of us put our electronic “John Hancock” on the screen every day, whether at the grocery store, drug store or other businesses.  We’re used to it as a perfectly valid way to seal- the-deal for routine retail transactions.

But what about other forms of documents, such as business contracts or wills and trust? Are electronic (no ink, no paper) signatures valid?

The answer is MAYBE.

For more than ten years, the US has been a signator to The Electronic Signatures in Global and National Commerce Act (ESIGNA) which makes e-signatures just as valid as the ‘wet signatures’ on paper. “E-signatures” come in many forms, such as:  (1) typing a signature into a space as directed on a form; (2) copying and pasting a scanned versions of the signer’s name; (3) using one of the cryptographic technologies available that scrambles information of the sender and allows the receiver to unscramble; or (4) clicking that ubiquitous, “I ACCEPT” button before software is enabled.

So, the ESIGNA allows business to proceed efficiently with the foregoing methods of “e-signatures.”

But some documents still MUST be signed the old-fashioned way in order to be valid.  What is “old fashioned?”  Using a pen and signing your name on piece of paper. These types of documents include:

  • WILLS, CODICILS AND TRUSTS
  • DOCUMENTS RELATING TO ADOPTION AND DIVORCE
  • COURT ORDERS, NOTICES AND OTHER DOCUMENTS LIKE PLEADINGS AND MOTIONS
  • NOTICES/DOCUMENTS RELATING TO
    • DEFAULT, FORECLOSURE, EVICTION, REPOSESSION
    • CANCELLATION OF HEALTH OR LIFE INSURANCE BENEFITS
    • HEALTH & SAFETY PRODUCT RECALLS
    • TRANSPORTATION OF HAZARDOUS MATERIALS

You’ll notice that the above list has a common thread – all the types of documents mentioned pertain to personal, health and safety issues.  And even if you do have that original document, whether you need to provide a copy of that original “wet signature” document for a transaction here or abroad  (from  filing a deed with the county record or  applying for a foreign tax subsidy) will depend on a number of factors, including the intent of the parties.

In today’s marketplace for routine business transactions between private parties, contracts often have a clause that provides: A facsimile copy and signature or electronic signature shall be deemed an original for all purposes herein.

People routinely sign contracts, scan them into their computer and send those scanned signature pages around the globe for counter- signature with the parties honoring the scanned documents as originals.  Keep in mind, however, that you should consult with your lawyer to make sure that your particular document has been properly executed and maybe even notarized or given an “Apostile” status as required for some purposes internationally.

You May Not Always Be Your Own Trustee

The focus for many people when they create a Trust is the distribution of their assets at the time of their death. We are seeing more clients who are living past their ability to direct and maintain their own finances. Make sure your Estate Planning documents are clear as to what you want for yourself in the event that a Conservator is appointed for you or in the event your Successor Trustee takes control of your finances during your lifetime.  What care and level of living do you want? Do you want to remain in your home for as long as possible despite the cost of home healthcare? Do you want annual gifts that you make to continue during your lifetime? Remember your Agent for Power of Attorney does not have authority or control over your Trust assets. If a Lease needs to be renewed or a Certificate of Deposit needs to be renewed and the assets are in the Trust name it will take the power of your successor Trustee to direct those assets.

 

Naming Retirement Beneficiaries: Who Should I Leave My Hard Earned Money To?

Naming a beneficiary for anything is always difficult. When naming a beneficiary, or beneficiaries, on a retirement account it is important to properly name them to insure that assets, in this case your retirement account, passes to your beneficiaries without the need for probate (click HERE to the read an earlier post on why you want to avoid probate). You want your beneficiaries to have the opportunity to either "roll-over" your retirement account into a new retirement account or to stretch out the retirement account distributions over the life expectancy of the beneficiary. The "roll-over" option is mainly used if your beneficiary is a spouse and the stretch out option is mainly used if the beneficiary is a child (the use of "child" refers to ones adult child). In some cases the IRA owner may want to name a trust as a beneficiary in order to control the distribution of the retirement assets after his or her death.

Naming a trust as a beneficiary may present its own problems, such as exposing your retirement assets to immediate taxation upon your death and resulting in the loss of the “roll-over" and stretch out option.  If you want to name a trust as a beneficiary, help your beneficiaries avoid undo frustration and seek the advice of an estate planning attorney.