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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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Reducing A Beneficiary’s Share Of An Estate Is Going To Require Some Backup

August 5, 2014

Authors

Luke Lantta

Reducing A Beneficiary’s Share Of An Estate Is Going To Require Some Backup

August 5, 2014

by: Luke Lantta

It can be frustrating to an executor and other beneficiaries of an estate when one of the beneficiaries causes unnecessary cost to the estate.  Wills and some state statutes sometimes provide a way to reduce that beneficiary’s testamentary share of the estate.  These provisions are often couched in terms of the executor having “discretion” to reduce a beneficiary’s share.  But, as the Georgia Court of Appeals explained in In re: Estate of Hazel Williams Helms, discretion doesn’t mean that an executor can arbitrarily reduce a difficult beneficiary’s testamentary share of an estate.  As we have previously seen in the context of a court applying the doctrine of set off, if someone is going to get less than that to which they are entitled under an estate, there needs to be specific evidence

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Trustees Must Secure Approval Of Lease Which Involves Potential Conflict of Interest

May 2, 2012

Authors

Luke Lantta

Trustees Must Secure Approval Of Lease Which Involves Potential Conflict of Interest

May 2, 2012

by: Luke Lantta

In Miller v. Miller, the trustees of the family trust of which Clifford Miller was a beneficiary almost completely prevailed on an appeal of a final judgment refusing to remove the co-trustees, approving a lease renewal entered into by the trustees, and awarding attorney’s fees.  So, where didn’t they prevail?

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Pennsylvania Court Could Not Assess A Surcharge Against Non-Party Wrongdoer

November 11, 2011

Authors

Luke Lantta

Pennsylvania Court Could Not Assess A Surcharge Against Non-Party Wrongdoer

November 11, 2011

by: Luke Lantta

When individual fiduciaries are found to have breached their fiduciary duties, they are often found to have received some help.  Many times a spouse, lover, or business partner is seen lurking in the wings, aiding and abetting the breach of fiduciary duty.  From an aggrieved beneficiary’s or successor fiduciary’s perspective, it’s imperative to get that joint-wrongdoer brought into court, where he or she can be held to account for the wrongdoing and – if there’s a recovery to be had – reimburse the estate or trust for damages.  In other words, a person cannot be held to account unless he or she is actually a party to the litigation.

In Estate of Brown, the Superior Court of Pennsylvania, decided that the Court of Common Pleas of Delaware County exceeded its authority when it imposed a surcharge on Kenneth Pearl, who was not a party

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