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SENIOR ADVOCATE

By Liza Horvath

 

The Unintentional Felony

 

When I was a bank trust officer it was not uncommon to be tasked with the estate administration of a decedent that I, personally, had never met. Such was the situation with “Jack.” In reading Jack’s trust, it was instantly clear that this would be an interesting case. Jack made provisions in his document for his first two wives, a small bequest to another lady friend and a lifelong and generous trust to support the last love of his life, Franny. 

 

When I met Franny she said that she had only known Jack in his last six years of life and that, while he was fun and adventurous, he had not forthcoming about what he had done during his working years. The administration was to become a meaningful learning experience for me as a (then) young trust officer.

 

A trustee or executor must administer the decedent’s estate as it is written in either a will or a trust. When a will is involved, the court oversees the probate. When we use trust agreements to dispose of assets, the court is only called upon if needed. What that means is a trust administration is only as good as the trustee’s ability or the legal counsel they retain to help them through the legal steps.  

 

Jack’s trust directed that specific personal property be given to friends and the rest be sold. The trustee must sort the personal belongings, retrieve vital documents, statements and tax returns needed for the administration, get appraisals as needed, locate items to be gifted and prepare the rest for sale.   

 

Dealing with the personal possessions of decedents is where some inexperienced trustees can unintentionally become felons. In addition to a number of guns, Jack had extensively traveled and much of his art had been collected around the world. Also, it appeared that Jack also collected pornography and some of his magazines, books and movies were sexually explicit.

 

One of the guns was to be given to a friend who lived in another state and the other to a neighbor boy who had helped Jack take care of his yard over the years. Felony number one would have occurred if I had simply packed up the gun for the out-of-state friend and sent it to him. Opportunity for felony number two was to give the other gun to the neighbor without first checking his record – he was a convicted felon and could not possess a firearm. One of Jack’s handguns had the serial number scratched off and needed to go directly to the sheriffs’ department but if I was “caught” transporting it? Felony number three! Selling the other guns at an estate sale would violate more laws. Most gun shipments and sales must be handled by a gun dealer with a Federal Firearms License.

 

Some of Jack’s art pieces included the feathers of an American eagle – felony (or, maybe, misdemeanor) number four and the ivory “tusks” of a carved wooden elephant from Thailand – possibly offense number five. We wanted to shred the pornographic books, magazines and movies but that would have been a felony! Some of the images were of children and the material was given to the FBI – as required by law.

 

Judges often say that ignorance of the law is not a defense. Administering an estate can provide opportunity to inadvertently break the law. If you are named trustee or executor of an estate – be aware of the laws in your state lest you become an unintentional felon.

Liza Horvath has over 30 years experience in the estate planning and trust fields and is the president of Monterey Trust Management, a financial and trust management company. This is not intended to be legal or tax advice. If you have a questions call (831)646-5262 or email liza@montereytrust.com

 


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