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Legal Question for Story

Mike-Kaye

Chrissy is 19 living in California. Her parents live and work in Pennsylvania or other state just as far away from CA. She will have access to way too much money when she turns 21. However, the terms of her grandparents will state that she is to get $1,000 per month starting at age 16. She never got it.

Her parent's lawyer has Chrissy's money in an escrow account in her name. When she turned 16, the lawyer contacted the parents asking them how they wanted him to handle that $1,000/month. The parents said to leave it in the escrow account. He did.

1 – Did the lawyer do something wrong for not disbursing the money as directed?
2 – Could Chrissy sue her parents for financial misconduct to a minor?
3 – Could Chrissy sue her parent's lawyer?

By 'could sue' I mean could sue AND have a reasonable chance of winning. As currently sketched, she promises her parents not to sue them if they send her a gift of $9000. I'm assuming that a legal battle will cost her parents more than that. Her CA lawyer wants half of whatever she gets from them. He helps her compose a polite letter to her parents.

Ross at Play
Updated:

@Mike-Kaye

If how British would assess that helps, I would say the PA lawyer has committed a serious criminal offense.

The office of Trustee, for example for an Estate, has very different obligations to that of a lawyer acting on behalf of a client. The MUST act on behalf of the Estate, certainly not their client for other matters.

I would go further and suggest Chrissy's CA lawyer has committed (if that's the word) at least malpractice through their incompetence, and should probably be charged be charged with embezzlement for attempting to steal half of her money. Their advice should be: you do not need to sue; you do not need to accept anything less than what you are entitled to according to the will; you should simply seek a court order requiring the lawyer to hand over your entitlements.

Ernest Bywater

she'd be crazy to pay the lawyer half - 10% yes, but 20% would be excessive, let alone 50%. As to the $1,000 a month, that will depend on both the exact wording of the will, and the laws in the state where the will was executed and the trust is managed. So that comes down to where the grandfather lived and died.

In a lot cases the allowance bit is for the recipient's living costs and personal expenditure, thus if that were the case and the money was released to her the parents would be able to claim some for living expenses they paid for. You need to set out the terms more fully.

Also, a lot of such wills have wording like 'make available to' which means it need only be put in an account the recipient can ask to have monies disbursed from. In such cases there is no obligation on the lawyer to tell the person the account exists as long as they tell the guardians and put the money in it.

This is a vary complex area with a lot of variations due to jurisdictions.

Since Chrissy now knows the money exists and it's should be about $36,000 in an escrow account in her name she should be able to contact the lawyer and have him release it straight to her and then send her the other grand per month direct - so no point in doing anything else. That saves on the family conflict issues and the shyster CA lawyer getting a cut.

awnlee jawking

If you want to be strictly accurate rather than entertaining, the lawyer couldn't act both for the parents and be the grandparents' executor because of the potential conflict of interest.

AJ

Ross at Play

@Ernest Bywater

that will depend on both the exact wording of the will

Yeah. Everything I said above depends on that!

Ross at Play

@Mike-Kaye

I would say the relevant answer as far as your story is concerned is you need to rethink the scenario entirely if you want to create a family conflict which will involve lawyers and potential legal cases. :(

Replies:   awnlee jawking
awnlee jawking

@Ross at Play

I'm not sure I agree with that. If the legal spat is just a minor conflict within the story, I think that writing what's entertaining takes precedence over legal accuracy. If the inheritance is the major conflict that's different.

(Do we need a 'Legal Porn' tag?) ;)

AJ

Replies:   Ross at Play
Ross at Play
Updated:

@awnlee jawking

what's entertaining takes precedence over legal accuracy.

Agreed ... but the title of the thread is 'Legal Question for Story'.

Dominions Son
Updated:

@Ernest Bywater


and the laws in the state where the will was executed and the trust is managed. So that comes down to where the grandfather lived and died.


It's more complicated than that. The laws of the state where Chrissy and her parents were living when she turned 16 may have an impact as well.

The parents may have legal control over any money that belongs to a minor child. That would mean that regardless of the terms of the will, the parents could control what is done with the $1000/month after it is distributed to Chrissy per the terms of the will.

However, the estate and it's executor would have been legally obligated to start distributing the $1000/month directly to Chrissy regardless of her parents wishes after her 18th birthday.

She would have a much stronger legal case against the executor and her parents as to that money than the money that she should have gotten between her 16th and 18th birthdays.

Mike-Kaye

@Ernest Bywater

This is a vary complex area with a lot of variations due to jurisdictions.


Thanks guys. I'm not looking for a legal spat. (IANAL I'm a software guy.)

Chrissy hates her parents and wants to extort as much out of them as she can.

I will leave the facts mostly alone except that the $1000/month is specified for her personal use. My text won't necessarily say that. But the PA lawyer knows it's in the will like that and knows he could in serious trouble. (He must really want to keep being her parent's lawyer.) He immediately releases her $39000. He tells her he must represent her, but ONLY in regard to her money. He does not tell her to get a CA lawyer. She askes about getting a lawyer. He says, "Contact the CA bar."

The lawyer of a good friend helps Chrissy compose a letter demanding $9000. Then when Chrissy wants her extra $9000 the PA lawyer encourages his clients to pay the lady. He writes a document that prevents any lawsuit about the delayed money protecting him as well as his clients.

Ross at Play

I've no idea about the law, but that scenario would pass my smell test as a reader. :-)

Ernest Bywater

@Mike-Kaye

Chrissy hates her parents and wants to extort as much out of them as she can.


the scenario, as laid out, would be good for most legal jurisdictions.

robberhands

@Mike-Kaye

He tells her he must represent her, but ONLY in regard to her money.

That's still a serious and very obvious conflict of interest. The PA lawyer is serving his head on a plate.

Replies:   Ross at Play  REP
Ross at Play

@robberhands

That's still a serious and very obvious conflict of interest.

Isn't the expression the 'family lawyer' quite common?
But you are correct insofar as lawyers are obliged to pick one side or the other as soon as potential actions against each other are even discussed.

Replies:   Not_a_ID
Switch Blayde

@Mike-Kaye

I'm not a lawyer.

I think the executor of the will must follow the instructions in the will so the $1,000/mth must be given to the child.

However, if the child is a minor (under 18), her legal guardians have control of her money so the money might not end up in the child's hands directly.

Laws were passed years ago to protect the child's earnings when parents were spending child actors' earnings. You may want to research those.

Replies:   Ross at Play
Ross at Play

@Switch Blayde

I think the executor of the will must follow the instructions in the will

That is the point I was trying to make.
Whatever rights parents may have afterwards if the child is a minor, any instructions in the will must be followed first.

Replies:   Ernest Bywater
Not_a_ID

@Ross at Play

Isn't the expression the 'family lawyer' quite common?
But you are correct insofar as lawyers are obliged to pick one side or the other as soon as potential actions against each other are even discussed.


This also becomes a question regarding size of the legal practice. IANL, but with regards to "family practice" at least until it reaches the point of one side suing the other, that a firm can/will divide client(person) specific tasks between various (in house) legal staff.

So the law firm may represent the family as a whole, but specific lawyers deal with specific persons within the family. But then, that probably only really comes into play with larger estates and large sums of money where the billable hours that generates is a non-issue for the estate/trust.

Replies:   Ross at Play
Ross at Play

@Not_a_ID

I recall a movie in which a husband, after deciding he wants to divorce his wife but before telling her, pays for one consultation with every one of the top divorce lawyers in the city - just to ensure none could represent her because they would then have a conflict of interest.

Replies:   sejintenej
maroon

Anyone who could be considered having a fiduciary responsibility could be in big trouble for not following through. An example in class once, where someone changed his will, and was using his bank to witness it. He went through the drive-thru, and they passed the will to him to sign, then he passed it through the tube back to the teller, where they signed as witnesses and sent back to him.
When he died, the person disinherited by the new will challenged it in court and won, receiving the whole proceeds of the prior will. The person benefiting from the new will sued the bank and won the lost inheritance from them too.

REP

@robberhands

That's still a serious and very obvious conflict of interest.


Why????

The PA lawyer's position is that of the Estate's Executor, it is his responsibility to control the disbursement of the Estate's funds. I would interpret the statement 'he must represent her in regard to her money' to mean he must comply with her instructions for disbursement of her portion of the Estate as long as those instructions are appropriate in terms of the Will and the state laws.

Here in the US, some states have statutes that state a person under the age of majority are not allowed to control their financial affairs. Their parents or guardians control the child's finances and if Pennsylvania is such a state, then the lawyer's actions were appropriate prior to Chrissy reaching her age of majority.

The problem I see in the story is that the PA lawyer put the money in an escrow account. As the Executor, the lawyer must maintain control of the money in the escrow account until it is disbursed to Chrissy. The account should be in Chrissy's name, but her parents should not be on the account as signatories with the authority to disburse the money. Therefore, the PA lawyer telling her parents to pay the lady would not be appropriate.

Since Chrissy is 19, the PA lawyer should have turned control of the escrow account over to her when she reached 18, assuming that the Will's terms did not dictate a different action. Once again, it seems that different states have statues that define whether a person preparing their Will has the right to control how their assets are to be disbursed after their death. I believe most states' statues say that the assets must be turned over to the adult inheritors once the court approves Probate. For children the situation is different. Assets are to be held in trust unless an alternate disbursement of assets is approved by the court, and when the child reaches the age of majority, the assets must be released to the child for they are now an adult. Which means the PA lawyer was required to release the escrow account's assets to Chrissy when she turned 18.

Since there is no apparent reason for the lawyer to have not released the funds and many reasons why he should do so, the lawyers actions lack credibility.

Replies:   robberhands
Ernest Bywater

@Ross at Play

Whatever rights parents may have afterwards if the child is a minor, any instructions in the will must be followed first.


In general, and morally, you're right. However, some legal jurisdictions have laws in place that require any amounts of money over a certain level due to a minor have to be paid to a legal adult who is acting on the minor's behalf. I've even read of some where the money has to be paid to a public trustee who manages it free of charge until the minor becomes and adult and is paid the money. Where I read that, about a decade ago, the trustee has to pay the person the principle plus the average of the local bank interest for each full month the money is their care. However, they're allowed to invest the money and earn a higher rate of interest on it, but they don't have to pay the person the full interest they earn over the savings bank average for their area - that's how the recoup management fees.

Ernest Bywater

You may have to check out the laws of the state you wish to use, but in most legal jurisdiction the money becomes the property of the minor when they become and adult as per the state laws. However, that may vary between legal jurisdiction, it used to be 18 in some US states while it was 21 in others, not sure if that's still the case. However, a lot will depend on the terms of the will, and how the trust is set up.

If the will says held in trust then the executor holds the money in trust for the recipient. However, if the will says set up a trust with these rules and the money is to be placed into the trust, then it's a whole new ball game because regardless of what the other laws state the rules of the trust are in control. Another issue is if the will says to be held in trust until they reach 21 years of age, then the state laws on legal majority have no control due to the wording of the will setting the age. This is especially true is the grandfather is smart enough to set up the trust before he dies, and then simply directs certain assets be placed in the trust for the benefit of the trust beneficiaries as per the trust rules. In which case the executor loses control as soon as the money is placed in the trust, and the trustee takes over at that time - even if they are the same living individual they are seen as two people before the law.

The above is general situations and may be varied by Orwellian state laws wanting to control people who are dead.

robberhands
Updated:

@REP


Why????


Simple, given the PO's premise, the PA is the lawyer of the parents as well as the lawyer of the child, Chrissy. That means he represents parties with opposite claims.

Replies:   Ross at Play  REP
Ross at Play

@robberhands

the PA is the lawyer of the parents as well as the lawyer of the child, Chrissy. That means he represents parties with opposite claims.

There are two very different roles with different obligations.
Trustees (executors are merely trustees for a particular type of trust) are not necessarily lawyers. They have an obligation to manage the affairs of a trust in accordance with whatever terms were established when it was created.
Lawyers act for clients in accordance with their instructions.

REP
Updated:

@robberhands


the PA is the lawyer of the parents as well as the lawyer of the child, Chrissy. That means he represents parties with opposite claims.


Not totally true.

the PA is the lawyer of the parents - true

as well as the lawyer of the child, Chrissy. - not true.

The lawyer represents the estate, not Chrissy. In his capacity as the Estate's lawyer he deals with many people in addition to Chrissy. He does not represent Chrissy or the other inheritor(s).

The exception to that is if a legal association is present separate from the estate. In that case, the lawyer is required to distance himself from his living clients when acting on behalf of the Estate. Thus no conflict of interest. Based on the description of the story, the state laws prevented the PA lawyer from giving the money directly to Chrissy and prevent him from taking direction from her while she was classified as a child. He did the proper thing under those circumstances by asking her parents how he should proceed. They controlled Chrissy's financial interest so they had the authority to direct him to give the money to her directly or hold it in trust.

The parents also had the right to use the $1,000/month to meet Chrissy's financial needs, but that was not addressed in the thread.

Ross at Play

@REP

I think your explanation is spot on until the point when Chrissy was no longer classified as a child.
At that point he was obligated to make it available to her, unless the will explicitly instructs otherwise.

Replies:   awnlee jawking
awnlee jawking

@Ross at Play

The will said that Chrissy was to get $1000 per month from 16. The lawyer did not give Chrissy the money. Therefore he was failing to fulfill his legal obligation. I don't believe state laws have any bearing.

AJ

robberhands

@REP

Not totally true.

the PA is the lawyer of the parents - true

as well as the lawyer of the child, Chrissy. - not true.

Here is what the author wrote:

the PA lawyer knows it's in the will like that and knows he could in serious trouble. (He must really want to keep being her parent's lawyer.) He immediately releases her $39000. He tells her he must represent her, but ONLY in regard to her money.

Replies:   REP
REP

@awnlee jawking

I don't believe state laws have any bearing.


In the US, all Wills drawn up in a state are required to meet the state's legal statutes.

The lawyer preparing the Will would know if the money could be given directly to a child. If that was not legal in the state, the Will would have been worded to reflect the Estate should pay out $1,000/month to be used for her benefit. There are several ways to do that, and the Will would also provide guidance as to how that should be done.

Reading between the lines, the lawyer knew the available options and approach them to determine how the money should be used for Chrissy's benefit. Evidently, one option was for them to meet her financial needs in total from their personal assets, and for the money to be held in the trust for her future use. That is what appears to have been described in the OP.

Ross at Play

@awnlee jawking

The will said that Chrissy was to get $1000 per month from 16.

I missed that. Chrissy should sue his arse off.

Dominions Son

@awnlee jawking

The will said that Chrissy was to get $1000 per month from 16. The lawyer did not give Chrissy the money. Therefore he was failing to fulfill his legal obligation. I don't believe state laws have any bearing.


1. State laws control the validity of terms of a will. Wills are written and executed pursuant to state law.

2. In most states a minor can't legally own property (even money). Any property "owned" by the minor is really owned by their parents and/or guardian. Even a savings or checking account for a minor has to be a joint account with a parent or guardian.

From 16 - 18 giving the money to Chrissy's parents is legally indistinguishable from giving it directly to Chrissy unless she was emancipated* from her parents by a court of law.

The structure of the will giving Chrissy an annuity from age 16 was an ill-advised move by her grandparents.

*The court declares the minor to legally be an adult despite being below the normal age of majority. This can be done in all 50 states, but it is extremely rare.

REP

@robberhands

I will leave the facts mostly alone except that the $1000/month is specified for her personal use. My text won't necessarily say that. But the PA lawyer knows it's in the will like that and knows he could in serious trouble.


Yes that is what Mike-Kaye wrote. However, what are we discussing. A fictitious scenario that deviates from the actual legal requirements placed on an Estate's Executor.

If you are talking about the Pennsylvania statues related to Wills, refer to:
http://www.legis.state.pa.us/cfdocs/legis/LI/Public/cons_index.cfm

If you wade through the statutes, you will find that the Will's Executor can be designated as the Custodian of the assets a Minor would receive from the Estate. The responsibilities and powers granted to such a Custodian give them the right to manage the assets as they deem appropriate for the welfare of the child.

What that means in terms of the story is the lawyer had the right to hold the distributed funds in trust. If the funds were needed for the child's welfare, a parent could obtain monies from the trust up to the total amount that had been distributed at the $1,000/month rate.

Replies:   robberhands
robberhands

@REP

I stated that the Lawyer's conflict exists in simultaneously representing the parents and the child since the parents owe money to Chrissy - i.e. opposite legal positions.

Now excuse me, but I've no desire to further discuss problems of a faulty, fictional, legal representation.

Replies:   REP
REP

@robberhands

I stated that the Lawyer's conflict exists in simultaneously representing the parents and the child


You seem to be having a problem with Chrissy is not the lawyer's client.

Chrissy never hired the lawyer and the lawyer never agreed to represent her. Since there is no lawyer-client relationship, there is no conflict of interest.

Replies:   robberhands
robberhands

@REP

Mike-Kaye:

... But the PA lawyer ... He tells her (Chrissy) he must represent her ...

Replies:   REP
sejintenej

@Ross at Play

I recall a movie in which a husband, after deciding he wants to divorce his wife but before telling her, pays for one consultation with every one of the top divorce lawyers in the city - just to ensure none could represent her because they would then have a conflict of interest

Not sure that that would work in the UK as you write it. Many solicitors allow meetings to consider a situation but they are not deemed to have accepted instructions until a number of steps have been gone through
At the initial meeting the "customer" goes in and says that he is Joe Bloggs but before he becomes a client he has to supply ID, evidence of address etc. and often a signature. The older ones usually look to an introduction

REP

@robberhands

Mike-Kaye:

... But the PA lawyer ... He tells her (Chrissy) he must represent her ...


Once again!

That is what Mike-Kaye is saying about his story.

Are you talking about the story (i.e. what Mike-Kaye is saying) or are you talking about how the real world works. You seem to keep mixing the two together.

The real world functions differently from what Mike-Kaye put in his story.

In the real world, an Estate's Executor does not represent the people who are to inherit the Estate's assets.

Replies:   robberhands
robberhands
Updated:

@REP


That is what Mike-Kaye is saying about his story.


And it's all I commented on. If you want another fictional scenario, why do you keep using his characters?

Replies:   REP
REP

@robberhands

Because my posts have been based in the real world, not a fictional scenario.

Replies:   robberhands
robberhands

@REP

Sorry, but 'I kept using Mike-Kaye's characters because my posts have been based in the real world' doesn't make any sense.

However, the cause of our misunderstanding has been identified.

Mike-Kaye

@Mike-Kaye

Thanks for the help. But I decided to change directions. The PA lawyer simply told Fidelity that her grandparents had left her a cool hundred mil. Because all that money was already held in a Fidelity account they should transfer ownership of the proper fraction if the estate to another Fidelity account in trust for her. He sent a copy of the will and mentioned the disbursement at age 16. The story deals with her being rich at 21. No point in bringing up nasty lawyers.

Her parents didn't want her to have the money at 16. They setup a savings account in her name without telling her. They kept her from seeing any mail about her Fidelity or PA savings account. (The money is in Chrissy's name at the –I made up this name– Keystone Business Bank of Pennsylvania.)

And now that the lawyer issues are put to bed I have something OT to ask: It should be okay to mention supermarket chains where the mention is for buying food. Ditto Costco.

But what about Fidelity Investments? As currently written, I am using the real address of a real Fidelity office in San Jose, CA. The account executive at that location (or whatever they are called) acts professionally as does Chrissy and her 66-yo male friend who, by Chrissy's request is allowed to observe the proceedings. (The account executive makes sure that this is something she wants.)

If using the actual address is inappropriate, I can say on Hamilton Ave just west of 17?

JohnBobMead

@Mike-Kaye

The smaller the firm, the trickier it is in regard to using real world addresses and such of still extant private businesses, due to the greater risk of significantly impacting their operations.

Even if given a good rep via how you portray them, they might be unhappy being mentioned in a story on an adult fiction site.

I don't think there's a hard and fast rule, however. just bear in mind that court cases have occcured over defamation of character, and some might argue that this venue would result in such, no matter how favorably you presented them in your story.

In other words, yes, it's something to worry about. Vagueness might be a good idea.

Ernest Bywater
Updated:

@Mike-Kaye


If using the actual address is inappropriate, I can say on Hamilton Ave just west of 17?


usually you can safely use any real organisations as long as you show them in a good light. That would apply to specific addresses as well. However do not use the names of people who really work there.

I tend to go very generic and mention such organisations in a generic way like - the San Jose office of blah blah etc.

fixed common typo of sue-use

Dominions Son

@Mike-Kaye

And now that the lawyer issues are put to bed I have something OT to ask: It should be okay to mention supermarket chains where the mention is for buying food. Ditto Costco.

But what about Fidelity Investments?


Yes, it's okay to mention Fidelity Investments.

It is perfectly legal to use, even without permission and in nearly any context, a registered trademark as long as it's being used to refer to the product, service or company for which it was registered.

The one context that is a grey area is advertisements for competing products.

The only possible legal issue would be if something in your story put Fidelity Investments in a bad light.

Hollywood movie studios do not pay companies to have brand name products in their films. Quite the opposite, companies line up to pay the studios to use their products in films as a form of advertising.

robberhands

@Ernest Bywater

usually you can safely sue any real organisations as long as you show them in a good light.

That's a good pun!

Dominions Son

@Ernest Bywater

usually you can safely sue any real organisations


It's generally a bad idea to sue an organization with deep pockets for frivolous reasons.

REP

@Mike-Kaye

What everyone has said is probably true.

However, I will present the other side of the issue for there can be a downside. You making a simple reference to a business (e.g., MC went to Home Depot), has an extremely low probability of getting you in trouble as long as it is not a negative reference.

The higher the level of detail you mention in the story, the greater the probability of encountering a problem.

Personally, I would not describe one of my characters doing business with a real company in the fashion you described in your post. Real world companies protect their image. If it came to their attention that their business and how they relate to their customers is posted to an erotic story site, they may take offense and legal action. Said legal action would probably just be a request to delete reference to them from your story, but you never know. Especially if they equate erotic and pornographic as the same thing.

If you want to play it safe, create a fictional business to handle Chrissy's accounts.

Mike-Kaye

If you want to play it safe, create a fictional business to handle Chrissy's accounts.


Thanks REP and others. That Fidelity Investments might not appreciate being mentioned on SOL is something I had not considered.

Chrissy's Grandparents used Iron World Investments. They have an office in downtown San Jose, CA. (And they validate parking.)

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