Trust BCLP

Trust BCLP

ARCHIVE

Main Content

Representative Versus Individual Capacity: It Can Make A Difference

January 28, 2015

Authored by:

Categories

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 review the compensation of the trustee/personal representative.  Those beneficiaries also

Proposal to Reform New York State Estate Tax System

Proposal to Reform New York State Estate Tax System

January 26, 2015

Authored by: Stacie J. Rottenstreich and Karin Barkhorn

177572431As reported on this blog last year, New York State modified its estate tax system by gradually increasing the estate tax exemption along with some other changes. The hope and intent were to keep New York State’s estate tax more competitive and in line with other states within the country to prevent a migration of New Yorkers from the state to avoid state estate tax. However, the language in the New York State stature which made these modifications created some significant problems for New Yorkers. The New York State Society of Certified Public Accountants, through its Estate Planning Committee, has proposed some additional reforms to the New York tax law (the “Proposal”) which attempt to eliminate some of the perceived unfairness in current New York law.

As it currently stands, for a New Yorker

Probate Court Could Not Dismiss Guardianship Petition Absent Evaluation Of Proposed Ward

January 21, 2015

Authored by:

Categories

At first blush, the Georgia Court of Appeals’ recent guardianship opinion in In re: Estate of Radric D. Davis seems intuitive: if a probate court finds probable cause to warrant the filing of a guardianship petition, then the probate court cannot later dismiss that petition without an evaluation of the proposed ward.  But, that this issue was before the whole appellate court instead of an appellate panel is the first indication that perhaps the question is more complex than it first seems.

A petition was filed for appointment of a guardian and/or conservator for Radric Davis.  The probate court reviewed the petition and determined that there was sufficient evidence to believe that the proposed ward was in need of a guardian and/or conservator.  A licensed clinical social worker was ordered to evaluate the proposed ward.  The first evaluation was rescheduled because the

South Carolina Expands Malpractice Claims Against Estate Planners

January 14, 2015

Authored by:

Categories

Add South Carolina to the growing list of states that have expanded the ability of third parties to sue estate planners for legal malpractice.  The South Carolina Supreme Court described its opinion in Fabian v. Lindsay as follows: “Today we recognize a cause of action, in both tort and contract, by a third-party beneficiary of an existing will or estate planning document against a lawyer whose drafting error defeats or diminishes the client’s intent.”

The plaintiff in this case was the niece of the grantor.  The plaintiff claimed that, due to a drafting error on the part of the grantor’s lawyers, she was inadvertently disinherited.  The trial court dismissed the case on the grounds that South Carolina law does not recognize a claim for legal malpractice in the absence of an attorney-client relationship and no South Carolina court recognized a

Unintended Tax Results Permitted Trust Reformation

January 7, 2015

Authored by:

Categories

Accomplishing a settlor’s tax objectives can be a major factor in creating a trust.  When a drafting error frustrates the settlor’s tax objectives, why shouldn’t  the trust instrument be reformed to reflect the intent of the settlor?  In O’Connell v. Houser, the Supreme Judicial Court of Massachusetts did just that – permitted reformation of a trust to embody the settlor’s intent and produce tax results that were consistent with the settlor’s objectives.

The George Houser Trust established two trusts for the benefit of George’s wife, Mary, and gave her a power of appointment over the marital trust.  When Mary died in 1993, the remaining principal in the George Houser Trust was divided into two “share trusts,” one for each of the Housers’ sons.  Each son had a limited testamentary power of appointment for any property remaining in his respective share upon

The attorneys of Bryan Cave LLP make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.