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The Georgia Superior Court/Probate Court Dance

November 9, 2016

Authors

Luke Lantta

The Georgia Superior Court/Probate Court Dance

November 9, 2016

by: Luke Lantta

No procedural or jurisdictional issues in Georgia fiduciary litigation can cause as much headache as the sometimes exclusive and sometimes concurrent jurisdiction of the superior and probate courts.  The Georgia Court of Appeals’ recent decisions in Rentz v. Rentz and Rentz Family Farms v. Rentz put a spotlight on these procedural and jurisdictional tensions.  The cases involved the distribution of real property held by an estate, a probate court’s order to liquidate that real property despite a current lease on certain parcels, and an attempt to have a superior court weigh in on the propriety of the probate court’s actions while the probate court proceedings were ongoing.

The appellate court’s description of the interaction between the probate and superior court as “complicated” may be an understatement.  Cutting through the “complicated interaction” was

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Personal Representative Should Have Been Removed For Conflict Of Interest

September 16, 2015

Authors

Luke Lantta

Personal Representative Should Have Been Removed For Conflict Of Interest

September 16, 2015

by: Luke Lantta

It’s not often that a personal representative asks a court to remove her.  It’s probably less often that a trial court refuses to remove a personal representative who asks to be removed.  But, that was the situation before the Court of Appeals of Wisconsin in Rapp v. Weller.  The appellate court, however, ultimately decided that the personal representative should be removed for an unmanageable conflict of interest.  What was the conflict of interest?

The personal representative had conflicts stemming from her fiduciary duties to the estate she represented and her personal interest as an heir of that same estate.  Laura Rapp had been appointed as personal representative for her brother Laurence Berg’s estate.  She participated in a mediation and signed a settlement agreement on the estate’s behalf.

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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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Conservator Did Not Have A Conflict Of Interest

April 15, 2014

Authors

Luke Lantta

Conservator Did Not Have A Conflict Of Interest

April 15, 2014

by: Luke Lantta

Often family members receive priority when it comes to being appointed conservator of an incapacitated adult.  If a conservator – who has control over the finances of the ward – is also named as a beneficiary in the ward’s will or recipient of some other of the ward’s assets upon death, the argument goes that the conservator is incentivized to not spend funds in support of the ward.  Is this a conflict of interest that precludes appointment of such a conservator or warrants removal?

In In re Estate of Lorraine McKitrick (via FindLaw), the Georgia Court of Appeals affirmed a probate court’s order that it did not.  In this case, the conservator was the ward’s son and had a potential death benefit in the ward’s accounts.  The ward had complained that the conservator refused to

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Georgia Executor Removed Due To Conflict Of Interest

December 12, 2013

Authors

Luke Lantta

Georgia Executor Removed Due To Conflict Of Interest

December 12, 2013

by: Luke Lantta

When a person names a friend or relative as a fiduciary in one instrument, it should come as no surprise if that person also names the same friend or relative as a fiduciary in another instrument.  Thus, the same person may be named executor, trustee, and attorney-in-fact.

Since we know that an executor is expected to marshal estate assets, we know that an executor may be called upon to investigate pre-death transactions to determine whether the assets that were the subject of those transactions should really be part of the estate.  Sometimes that requires a lawsuit to recover those assets.  So, what happens when one person, acting under a power of attorney, engages in a transaction that estate beneficiaries claim was improper?  If the attorney-in-fact is also the executor, how can that person be called upon to investigate him or herself?  In In re: the

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Conflict Of Interest Warranted Judicial Removal Of Personal Representative And Trustee

October 31, 2013

Authors

Luke Lantta

Conflict Of Interest Warranted Judicial Removal Of Personal Representative And Trustee

October 31, 2013

by: Luke Lantta

Individual trustees who must administer real property often attempt to save the trust money by personally making certain improvements, repairs, or maintenance to the property.  They then charge the trust for the work they performed.  As the Nebraska Court of Appeals points out in In re Estate of Robb, however, these acts – however well-intentioned – may be self-dealing and can put the trustee in a position of a conflict of interest, which can warrant removal from that fiduciary position.

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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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Florida Lawyer Who Wore Many Hats Disbarred

April 9, 2012

Authors

Luke Lantta

Florida Lawyer Who Wore Many Hats Disbarred

April 9, 2012

by: Luke Lantta

I don’t want to get into a lot of detail about The Florida Bar v. Doherty, a recent attorney disciplinary proceeding from Florida, but just want to raise it as a cautionary tale for those practitioners who wear multiple hats for the same client.  You know – those practitioners who act as both estate planner and investment advisor for the same client; those practitioners who act as estate planner for a client and then get named as trustee, executor, etc. in that client’s estate planning documents; those practitioners who act as estate planner and annuity salesperson for the same client; and those practitioners who act as attorney and business partner for the same client.

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Illinois Trustee-Beneficiary May Have A Conflict Of Interest

October 19, 2011

Authors

Luke Lantta

Illinois Trustee-Beneficiary May Have A Conflict Of Interest

October 19, 2011

by: Luke Lantta

Plenty of trust instruments are set up to permit a beneficiary to act as trustee.   When the trust has more than one beneficiary, however, the testator or grantor potentially sets that trustee-beneficiary up for conflict of interest claims.  In these situations, prudent testators or grantors typically appoint a neutral co-trustee to serve with the trustee-beneficiary and require the trustee-beneficiary to take no part in self-encroachments or self-distributions.

In Faville v. Burns, the Illinois Court of Appeals considered whether a trustee-beneficiary has a conflict of interest with his co-beneficiaries of a trust.  The trial court had dismissed the co-beneficiaries’ efforts to remove the trustee-beneficiary based on a conflict of interest.  The Court of Appeals, however, reinstated the removal claim. 

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