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How Much Notice Is Required To Remove A Georgia Executor?

September 2, 2015

Authors

Luke Lantta

How Much Notice Is Required To Remove A Georgia Executor?

September 2, 2015

by: Luke Lantta

Just how much notice is required before removing an executor in Georgia?  Maybe not all that much.

In Myers v. Myers, the beneficiary of several testamentary trusts filed a petition in probate court seeking, among other things, removal of the executor of the estate for numerous alleged breaches of fiduciary duty and a conflict of interest.  The beneficiary later withdrew the request that the executor be removed out of concern over an in terrorem clause and limited the petition to a request for an accounting.  In the amended petition, however, the beneficiary still repeated all of the original petition’s breach of fiduciary duty and conflict of interest allegations – he just didn’t specifically seek removal based on

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Time Limit For An Estate Accounting

June 3, 2015

Authors

Luke Lantta

Time Limit For An Estate Accounting

June 3, 2015

by: Luke Lantta

Estates can be left open for a long time.  Like decades long.  And during that time, an executor is going to continue to owe certain fiduciary duties to the beneficiaries of the estate, such as the duty to provide an accounting to the beneficiaries.  In In re: Estate of John Malcolm Wade, the Georgia Court of Appeals examined the time limit in which a beneficiary may bring an action for an accounting of an estate.

In this case, the estate had been open since 1987 and was still open in 2012 when one of the beneficiaries (Mary, who was also a co-executor with her four siblings) petitioned the probate court to obtain an accounting of her co-executors’ dealings on behalf of the estate.  The siblings claimed that Mary’s action was time-barred under

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Representative Versus Individual Capacity: It Can Make A Difference

January 28, 2015

Authors

Luke Lantta

Representative Versus Individual Capacity: It Can Make A Difference

January 28, 2015

by: Luke Lantta

There is a difference between a person acting in her individual capacity and acting in her representative capacity.  We have seen that this difference may matter when signing documents.  And we have seen that it may also matter when filing a lawsuit that involves trust property.  Now, in Kozinski v. Stabenow, a Florida appellate court tells us that it may also matter when seeking to surcharge a trustee and personal representative.

In this case, after the trustor died, the trustee of a trust created by the trustor filed a notice of trust.  The trustee was also the representative of the trustor’s estate and filed a separate petition for administration of the estate.  The two cases were consolidated and a petition was filed by two beneficiaries of the will and trust to

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Probate Exception Did Not Apply To Claims Relating To Trust Funded By A Pour Over Will

March 18, 2014

Authors

Luke Lantta

Probate Exception Did Not Apply To Claims Relating To Trust Funded By A Pour Over Will

March 18, 2014

by: Luke Lantta

The probate exception to federal jurisdiction provides that a federal court may not probate a will, administer an estate, or entertain an action that would interfere with pending probate proceedings in state court or with the control of property in the custody of the state court.

After the U.S. Supreme Court’s decision in Marshall v. Marshall, federal courts have generally applied this test to determine whether a case fits within the probate exception: whether a plaintiff seeks an in personam judgment against a defendant, as opposed to the probate or annulment of a will or other relief seeking to reach a res in the custody of a state court, and whether sound policy considerations, specifically, the special proficiency of state courts with respect to the issues presented by a case, militate in favor of extending the probate exception to

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Court Could Not Impose Constructive Trust On Assets Transferred From Trust To Limited Partnership

January 17, 2014

Authors

Luke Lantta

Court Could Not Impose Constructive Trust On Assets Transferred From Trust To Limited Partnership

January 17, 2014

by: Luke Lantta

Whether a particular court has jurisdiction to hear a trust dispute can become increasingly more complicated as trustees, beneficiaries, and assets move to different states.  So, when a lawsuit is filed, a threshold question should be whether the lawsuit was filed in a court with jurisdiction over the parties and the property.

The Nevada Supreme Court’s decision in In re Aboud Inter Vivos Trust highlighted some of these jurisdictional issues when the Court considered whether a district court could impose a constructive trust over assets transferred from a trust to a limited partnership and then from the limited partnership to a corporation.

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Federal Court Orders Trustee To Provide A Trust Accounting

April 10, 2013

Authors

Luke Lantta

Federal Court Orders Trustee To Provide A Trust Accounting

April 10, 2013

by: Luke Lantta

We often see trust beneficiaries sue a trustee to compel an accounting of the trust’s receipts, disbursements and assets.  A court should start with the trust instrument to determine whether an accounting is required and, if so, to whom and what it should contain.  That’s what an Illinois federal court did in Drewry v. Keltz.

The trust instrument there required that “[e]ach Successor Trustee shall render an account of his/her receipts and disbursements and a statement of assets to each adult vested beneficiary.”  The plaintiffs were adult vested beneficiaries of the trust who had made requests for the successor trustee to provide an accounting, which the trustee did not provide.  The federal court ordered the trustee to provide the plaintiffs with an accounting of his receipts and disbursements on behalf of the trust and a

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The Inheritance Rights Of ‘Rejected’ Adopted Children

February 20, 2013

Authors

Luke Lantta

The Inheritance Rights Of ‘Rejected’ Adopted Children

February 20, 2013

by: Luke Lantta

When it comes to so-called ‘rejected’ adopted children, many of us are most familiar with the outrage in 2010 when a Tennessee woman sent her adopted son back to Russia on a one-way flight after claiming the 7-year-old had bouts of violence.  But what about the inheritance rights of these adopted children?  Do they have any?

We previously looked at the inheritance rights of biological children adopted out of a family.  Today we’ll turn to the inheritance rights of adopted children who are adopted out of a family in the Matter of Svenningsen, a case of first impression in New York.

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Iowa Weighs In On Fiduciary Duty To Account To Beneficiaries Of Revocable Trusts

February 4, 2013

Authors

Luke Lantta

Iowa Weighs In On Fiduciary Duty To Account To Beneficiaries Of Revocable Trusts

February 4, 2013

by: Luke Lantta

There is a surprising but growing split of authority on the extent of fiduciary duties a trustee owes to beneficiaries of a revocable trust other than the settlor.  Remarkably, state appellate courts are dealing with these issues for the first time now.  We previously took a look at this issue when a Missouri appellate court ruled in In re Stephen M. Gunther Revocable Living Trust that “[b]ecause the trustee owed no duty to the beneficiaries prior to the settlor’s death, they are not entitled to an accounting of trust transactions prior to that date.”  In ruling this way, Missouri joined other states, such as Louisiana, in reaching this conclusion.  We also looked at an Arizona appellate court apply Michigan law to reach the same conclusion.  Seemed to make sense.

But, in late 2012, a closely

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Florida Appellate Court Distinguishes Between Two Limitations Periods For Breach Of Trust Suits Against Trustees

May 23, 2012

Authors

Luke Lantta

Florida Appellate Court Distinguishes Between Two Limitations Periods For Breach Of Trust Suits Against Trustees

May 23, 2012

by: Luke Lantta

Section 737.307 of the Florida Statutes provides for a limitation of actions against a trustee in two circumstances.  The first limitations period is six-months.  The second limitations period is four years.  So, what’s the distinguishing characteristic between the two limitations periods?

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Court Weighs In On Reasonableness Of Fees Paid By Estate To Administrator, Attorney, and Accountant

May 9, 2012

Authors

Luke Lantta

Court Weighs In On Reasonableness Of Fees Paid By Estate To Administrator, Attorney, and Accountant

May 9, 2012

by: Luke Lantta

Estate beneficiaries’ happiness is inversely proportional to the amount of money spent by an administrator for professional help.  That’s why we see a lot of disputes not over the hiring of a professional, but over the appropriateness of the total amount paid to a professional hired to help settle an estate, such as an attorney or accountant.

In Murphy v. Prescott (unpublished), the Appeals Court of Massachusetts weighed in on a group of heirs’ claims that certain fees paid to the administrator, an attorney, and an accountant in connection with settling an estate were unreasonable.   The appellate court also gave some helpful advice to attorneys about those pesky time sheets.

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