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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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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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Case Update: Rosenkrantz v. Feit

February 13, 2012

Authors

Luke Lantta

Case Update: Rosenkrantz v. Feit

February 13, 2012

by: Luke Lantta

Just a quick case update to start the week.  In December, we wrote about a Florida appellate court’s decision in Rosenkrantz v. Feit in which the court of appeals allowed one attorney-in-fact to pursue a lawsuit against her co-attorney-in fact.

Last week, the same Florida court of appeals denied the appellee’s motion for rehearing, but substituted this new opinion for the one issued in December.

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Attorney-In-Fact’s Lawsuit Against Her Co-Attorney-In-Fact Is Allowed To Proceed

December 19, 2011

Authors

Luke Lantta

Attorney-In-Fact’s Lawsuit Against Her Co-Attorney-In-Fact Is Allowed To Proceed

December 19, 2011

by: Luke Lantta

I understand why someone would want co-executors, co-trustees, co-attorneys-in-fact, etc.  Maybe it’s because they’re afraid of having too much power in one person’s hand.  Maybe it’s because they don’t want to offend a friend, child, or relative.  Maybe it’s because it may just be easier to have a few people with that power in case the other is indisposed.  I get it.  But, going in, they should also know it’s a recipe for litigation.

Co-fiduciaries often have to work unanimously – either by statute or by the underlying instrument.  Lack of unanimity leads to lawsuits.  Moreover, when, for example, one attorney-in-fact lives in the same state as the principal, the co-attorney-in-fact residing in another state may be cut out of the process.  Whether perceived or actual shenanigans exist, litigation may result.

In Rosenkrantz v. Feit, a Florida Court of Appeals considered whether one attorney-in-fact could pursue a lawsuit

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