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Does A Trustee’s Lawyer Owe A Fiduciary Duty To The Trust Beneficiaries?

May 20, 2015

Authors

Luke Lantta

Does A Trustee’s Lawyer Owe A Fiduciary Duty To The Trust Beneficiaries?

May 20, 2015

by: Luke Lantta

There is seemingly a line – at least under Florida law – that will not yet be crossed in the expanding world of third parties who purportedly owe duties to trust beneficiaries.  In Walther v. Kane (unpublished), the United States Court of Appeals for the Eleventh Circuit affirmed a federal district court’s ruling that, under Florida law, an attorney retained to represent only the trustee does not owe a fiduciary duty to the beneficiaries of the trust.  This decision stands in contrast to the trend in jurisdictions, including Florida, to chip away at the privity requirement when it comes to legal malpractice claims against estate planning attorneys.

Lawyers representing Florida trustees can rest a little easier for two reasons.  First, although unpublished, a federal appellate court has

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Removal Of Florida Trustee Requires Notice And An Opportunity To Be Heard

August 21, 2012

Authors

Luke Lantta

Removal Of Florida Trustee Requires Notice And An Opportunity To Be Heard

August 21, 2012

by: Luke Lantta

We’ve taken a look at the Florida appellate courts’ seemingly endless string of cases reversing trial courts that have removed fiduciaries without notice and an opportunity to be heard.

In Kountze v. Kountze, we have yet another reminder of this basic rule, but this time in the context of removal of a trustee and with a little different twist.

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Florida Appellate Court Distinguishes Between Two Limitations Periods For Breach Of Trust Suits Against Trustees

May 23, 2012

Authors

Luke Lantta

Florida Appellate Court Distinguishes Between Two Limitations Periods For Breach Of Trust Suits Against Trustees

May 23, 2012

by: Luke Lantta

Section 737.307 of the Florida Statutes provides for a limitation of actions against a trustee in two circumstances.  The first limitations period is six-months.  The second limitations period is four years.  So, what’s the distinguishing characteristic between the two limitations periods?

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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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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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Another Reason Why It’s Important To Read The Entire Trust Instrument

December 16, 2011

Authors

Luke Lantta

Another Reason Why It’s Important To Read The Entire Trust Instrument

December 16, 2011

by: Luke Lantta

As corporate fiduciaries consolidate, merge, or otherwise combine with each other, trust departments are often tasked with administering trusts outside of their home state.  For example, a trust department in Florida may, for the first time, end up administering a New York trust.  Knowing which state’s trust law governs the administration of the trust is no small matter.

While corporate fiduciaries are usually well-acquainted with their home state’s trust code, they may not be as familiar with the trust codes and law that actually apply to that newly acquired trust relationship.  As a result, trustees may inadvertently end up administering the trust under the wrong standards by simply assuming that the home state’s trust code applies.

This is another reason why it’s so important to read every word in the trust instrument.  Even after reading the trust instrument, it’s then important to independently determine which state’s trust laws apply

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Statutes of Limitation and Arbitration

December 2, 2011

Authors

Luke Lantta

Statutes of Limitation and Arbitration

December 2, 2011

by: Luke Lantta

We’ve previously discussed arbitration agreements in a number of contexts, including who should sign them and when courts have enforced them.  While whether to include an arbitration clause in your standard account agreement is a business decision (and you will find people with very strong opinions on both sides of this debate), if you decide to include one you better make sure that your boilerplate is up-to-date.  Especially in Florida and especially as it relates to statutes of limitation.

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