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Trust Instrument Can’t Completely Insulate Trustee From Liability

September 2, 2016

Authors

Luke Lantta

Trust Instrument Can’t Completely Insulate Trustee From Liability

September 2, 2016

by: Luke Lantta

Settlors often want to give their trustees peace of mind that they can administer the trust without a court looking over their shoulder and second-guessing every act they take.  So, estate planners will often put a broad exculpatory clause in the trust instrument to relieve the trustee from liability for certain actions in administering the trust.  But, just as we have seen in other jurisdictions, in In re Scott David Hurwich 1986 Irrevocable Trust, the Court of Appeals of Indiana recognized that there is a limit as to how far the relief from liability can extend.

A settlor/beneficiary of a trust sued the trustee, alleging mismanagement of trust assets, commingling trust assets with the trustee’s own funds, conversion of trust assets, waste of trust

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Trustee Must Arbitrate Claims Against Financial Advisor

October 1, 2013

Authors

Luke Lantta

Trustee Must Arbitrate Claims Against Financial Advisor

October 1, 2013

by: Luke Lantta

We have previously looked at instances where trustees have sought to compel arbitration of claims brought against them.  Today, we take a look at Wells Fargo Advisors, LLC v. Pritchard, a case from Mississippi where a marital trust brought negligent management and conversion claims against its financial services firm and financial advisor.  There was, of course, a client agreement containing an arbitration clause.  The interesting wrinkle was that the incidents giving rise to the complaint arose before the arbitration agreement was signed.  Was this retroactive application of an arbitration clause enforceable?

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Georgia Executor Converted Estate Assets

November 18, 2011

Authors

Luke Lantta

Georgia Executor Converted Estate Assets

November 18, 2011

by: Luke Lantta

In In re Estate of Tapley, the Georgia Court of Appeals took on a number of procedural issues regarding litigation over the Estate of Opal Mae Tapley.

The case highlights a common problem with fiduciary litigation – estate disputes often span multiple courts and involve multiple separate lawsuits.  The case therefore serves as a good reminder to fiduciary litigators that it is their responsibility to follow proper procedure or risk losing a damage award on appeal.

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Georgia Estate Owned Contents of ‘Joint’ Safe Deposit Box

October 31, 2011

Authors

Luke Lantta

Georgia Estate Owned Contents of ‘Joint’ Safe Deposit Box

October 31, 2011

by: Luke Lantta

Joint tenant with right of survivorship accounts are commonly used to transfer assets outside of probate.  They also tend to lead to a lot of estate litigation.  The concept of a JTWROS account is simple enough: the tenants have an equal right to the account’s assets and the survivor gets the assets when the other account holder dies.

What if someone doesn’t want to make an inter vivos gift of his or her cash or other valuable personal property, but instead wants it to be transferred outside of probate upon his or her death?  Can something like a joint tenant with right of survivorship safe deposit box work?  If your plan is to use a ‘joint’ safe deposit box, then you better pay careful attention to the safe deposit box contract.  At least that was what was decided by the Georgia Court of Appeals in Longstreet v. Decker.

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Ohio Attorney-In-Fact Abuses Power Of Attorney

October 24, 2011

Authors

Luke Lantta

Ohio Attorney-In-Fact Abuses Power Of Attorney

October 24, 2011

by: Luke Lantta

There are so many ways to abuse powers of attorneys.  That’s why they’ve been referred to as “vehicles for fraud.”  While we’ve previously looked at ways in which they’ve been abused and our colleagues at Bryan Cave, Stephanie Moll and Mary McMath, have examined them in the context of “Who Can You Trust?” over at TrustBryanCave.com, the ways in which they can be abused are seemingly endless.  The reality is that these cases will continue to appear in increasing numbers as the Baby Boomers get older.

Last month, in Ward v. Patrizi, the Ohio Court of Appeals dealt with a a classic power of attorney abuse fact pattern.  A person who needed some help managing his bills designated a family member as his attorney-in-fact.  The attorney-in-fact dutifully paid the principal’s bills from his checking account, but, on the day

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