2015 in London, England. Seven-year-old Malachi Taylor, who has a brain tumour and wants to become a police officer, became Kingston police's "youngest cop" after completing a course with 200 other officers.
Will is the last wish in life, of course, to find their trust to help realize. This trust relationship is both solemn and practical, but also sacred and humane. It's important to find a person or organization to trust.
Let's start with relationships
In western countries, people worship professionals doing professional things. In making a will on this matter, the first thing they think of is to find a testator lawyer, the distribution of property after death in line with their own will planning, at the same time in the lawyer's help to draft the will, also used to let the will lawyer backup custody, and regularly updated, after all, things are constantly changing. Contrary to our understanding, although this is a last wish, it is not a permanent job, because some people may start their wills in the prime of life or even in their youth.
In fact, the "intended guardian" introduced in China in recent years is a concrete manifestation of the development trend from institutional trust to individual trust. "Voluntary guardian" means that any natural person can designate another natural person in writing as his or her guardian after physical disability to take care of his or her life, dispose of his or her property and have other corresponding rights. At this time, the trustee is not only responsible for the life of the principal after he is incapacitated, but also can dispose of the property on his behalf. In law, the intended guardian takes precedence over the legal guardian. They form a fiduciary relationship that may give the discretionary trustee priority over any of the trustee's family members in exercising power. If the opinion of the intended guardianship trustee is in conflict with that of the legal successor (such as a son or parent), then the intended guardianship trustee will have the final say as he or she has the greatest legal power.
, of course, if you anticipate the guardians by may damage the legitimate rights and interests of a change of heart, for you, such as illegal transfer, misappropriation of property, so that you can use another paper of the guardianship declaration by revoke the custody, specify more worthy of trust as a new means for man to direct the guardian, and care of guardianship declaration strict custody of the set by the guardian and termination conditions, To protect their legitimate rights and interests.
Start with legal relations
The trust system came into being hundreds of years ago in the United Kingdom. Trustees perform trust affairs out of obligation and responsibility, without remuneration, taking up a lot of their own time, and facing great risks. It was a time when fiduciary duty was sacred and noble, giving and receiving. In this way, relationships are very important. In the early stage, the trustee was usually a friend or relative of the beneficiary. With the rise of commercial trust, this relationship has become rewarding or even profit-making. At this time, although the trustor and the trustee also reach a trust agreement based on the trust relationship, the former should pay for it, and the latter will only accept the trust if it can make a profit.
Once a fiduciary relationship is formed, the intended guardian (trustee) shall serve the principal as agreed upon by both parties, whether for the purpose of obligation, responsibility or profit. In the Anglo-American trust law, there are two essential rules, namely the "conflict prohibition" principle and the "profit-making prohibition" principle. The former forbids the conflict between the trustee's own interests and fiduciary obligations, while the latter forbids the trustee to seek benefits for himself by taking advantage of the fiduciary status.
In the legal sense, fiduciary obligations can be divided into two categories: agreed obligations and legal obligations. The agreed obligations in trustee's obligations are mainly the obligations to abide by the trust contract and other trust documents, which means the contractual obligations. The agreed obligations are determined through negotiation. The core of legal obligation is fiduciary duty, which means that the trustee should be loyal to the beneficiary and manage the trust property prudently and diligently for the benefit of the beneficiary. Fiduciary duty takes duty of loyalty and duty of diligence as the core, and other obligations are the concretization and application of these two obligations.
Since it is a commercial trust, it is liable if something goes wrong. Three factors should be considered in determining the trustee's liability: one is that the trustee violates the fiduciary obligation; the other is that the trust property causes losses; the third is that there is a considerable causal relationship between the two. The liability of the trustee includes three forms: restoring the original state, compensating for losses and belonging to the trust property. The scope of indemnification by the trustee includes both direct and indirect losses. Of course, the calculation of indirect losses varies from case to case.
In this way, we can see the difference in the aspect of the estate trust. That is: when there is no trust relationship, the estate can be given as it wants, which is one-time, static, less costly and reflects the will of the individual; When establishing a trust relationship, I can do as I want, it is multiple, dynamic, costly and reflects my own will. One describes it as a "hand from the grave" -- the person is no longer there, but his ideas still dominate the distribution of his legacy.
Start with financial relationships
Testamentary trust is of course also a financial relationship because it involves the transfer and inheritance of property. Since property has been the object of competition for offspring since ancient times, therefore, once the financial relationship involves inheritance, it will be more complicated. The trust terms should not only be regulated clearly, but also be formulated pragmatically and feasible. If it is not clear, there will be different interpretations, causing disputes; If it is too complicated, it will make it too difficult to execute, which will affect the effectiveness of testamentary trust, and will be more difficult to implement.
American rocker Michael Jackson and Hong Kong star Anita Mui both died young, with very different outcomes despite leaving formal wills. Jackson's will was well executed in accordance with his own wishes. Although Anita Mui's will has both witnesses and trustees, its authenticity is still challenged, and the challenger is Anita Mui's biological mother. The result, of course, was a lose-lose, with the trust losing a lot of money and his mother going bankrupt because she couldn't afford the high legal fees. If Anita Mui had a spirit in heaven, she would be tearless.
In terms of the financial relationship itself, according to the provisions of article 16 of China's "Inheritance Law", the testator can appoint the executor, responsible for the implementation of the possible distribution of property. He can either appoint a natural person he is familiar with as the executor of the will or appoint an organization he trusts as the executor. The notary institutions that are everywhere now can also accept the entrustment of the parties, take charge of keeping the estate after the will comes into effect, and distribute the estate or make other punishments according to the will.
Notarial participation in testamentary succession has a long tradition in civil law countries. For example, Article 1007 of the French Civil Code stipulates that all self-written wills or sealed wills should be submitted to a notary before they are granted execution. If there is a seal on the will, it should be opened. The notary on the spot to make the opening of the will and the state of the will record, and specify when the will is deposited. In France, the notary is a trusted person, accept the testator's entrust and act as the executor is an important duty of the notary. On behalf of the deceased, they exercise legal authority to supervise the execution of wills, take property preservation measures, and sell movable property to pay off emergency debts. In terms of the security of financial relationships, these notaries are well-educated and abide by the spirit of contract, which generally does not cause problems, but the industry is also often criticized for its monopoly, high fees and low efficiency.
In spite of their natural advantages, testator trusts, if they are to be widely recognized in our country, still need an environment of professional and social customs, of the idea of governing for the people and of making public information, and of the spirit of contract -- in a word, an environment of rule of law rather than rule of men.
First, we as individuals should learn to "outsource" ourselves. It is just like that enterprises win a big contract, but they cannot complete it all by themselves, so they must outsource some unfamiliar businesses. We must learn to outsource the part of our lives that we cannot control. We should not rely on our children for everything as we do now. In fact, if the elderly outsource themselves, they will find a wider world. When the domestic elderly stay at home alone, many old people in the West have taken the initiative to live in a nursing home, even the French like home care, also regard children visit as a luxury.
In fact, more and more elderly people not only want to make a distribution of their property before they die, but also want to do their best to help their children to reduce the inheritance of the procedures, in particular to eliminate the children may be due to inheritance disputes. Of course, because the degree of distrust of marriage in modern society is strong, including the children's marriage wary heart is heavier, there are many parents will leave their property to their children, rather than give it as the property of marriage. For example, wills that leave property to their daughters but not to their sons and their sons but not to their daughters-in - law have been nicknamed "daughter-in-law - proof" or "son-in-law - proof" clauses.
In November 2021, a luxury estate in Miami was put up for sale through a real estate agency. The estate is owned by a German shepherd from Austria whose name is Gunther IV. When Carlotta Lebenstein died in 1992, she left a fortune to her dog Gunther III, the father of Gunther IV. Gunther IV's wealth rose to about rmb2.5bn at one point as asset managers made a number of investments after he inherited his estate, including buying the estate.
Anita Mui's brother Kai Ming mui (second from right) holds a press conference at City Garden Street, North Point, Hong Kong, February 2022. Mui claimed to own The trademark right of Anita Mui and insisted on suing the film company for infringement. At the same time, mui accused her mother, believing that Her mother was manipulated by others and claiming that this was the fuse for her to break away from her relationship with him.
Secondly, domestic support for the elderly care industry needs to be strengthened, and this field needs to let people fully communicate. In France, for example, the public service and related agencies have done a good job. Their website has a lot of practical information about wills. The explanation of how to make a will is simple and uniform across the country, and citizens can go to any region if they want to know about wills.
In our country, countless elderly people have the experience of breaking their legs, and it is frightening to think of all those government documents, notary office lines and supplementary materials. Notary offices have seen a growth spurt in recent years, but people in the industry still complain about low fees and heavy responsibilities. In fact, compared with the NOTARization of a document in the United States only a few dollars, our notary office often hundreds or even thousands of RMB fees are quite high. Therefore, many notary offices have issued internal profit targets, allocate resources to those lucrative business, and the government price limit notary business delayed processing, as a result, whether the notary office or the will bank, the phenomenon of waiting in line for a year has become a normal, many people may not wait to die.
Thirdly, from the social point of view, it is more necessary to cultivate the spirit of contract. Let more people willing to be trustees, truly become trustees. A group of trustees in the society will not only increase the output value of the industry, but also emerge a group of people of high quality, purify the social environment, and expand the spirit of valuing faith and abiding by contract. The fiduciary species should be nurtured as a society. Let good money get more space, rather than let bad money run amok, but not laissez-faire bad money drive out good money.
Since ancient times, we Chinese value credit and westerners keep contracts. We should encourage people to take on the role of executor rather than putting obstacles in their way.
