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Waiver Of Year’s Support Through Post-Nuptial Agreement

May 3, 2017

Authors

Luke Lantta

Waiver Of Year’s Support Through Post-Nuptial Agreement

May 3, 2017

by: Luke Lantta

Divorce should put an early end to the marriage vow of “’til death does us part.” But, when it comes to estate disputes, neither divorce nor death can part the path to the courthouse.  In In re: Estate of Boyd, the husband and wife may have suspected their marriage could end: after 15 years of marriage, they separated, reconciled, and then entered into a post-nuptial agreement.  The agreement provided how assets would be distributed if the parties were married at the time of either’s death and provided for distribution of assets if the parties separated or filed for divorce prior to death.  The latter provision is relevant.

The husband filed for divorce and died hours later.  The wife filed a petition for year’s support in the probate

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Forgiveness May Be Available For An Untimely Caveat

January 20, 2017

Authors

Luke Lantta

Forgiveness May Be Available For An Untimely Caveat

January 20, 2017

by: Luke Lantta

It’s a new year and with it comes many resolutions. Each year, a popular resolution is to be more forgiving or to forgive someone who wronged you.  Apparently, trying to get a head start on its resolutions, on December 30, the Georgia Court of Appeals entered its opinion in In re: Estate of James Lynn Hill.  What does this have to do with forgiveness?  Remember that time we said that “in Georgia, the time to file a caveat may be short and unforgiving?”  Well, some forgiveness may be available.

An executrix filed a petition to probate a will.  Notice was sent to an heir informing him of the deadline to object.  The heir filed a caveat, but did so over a month late.  Under Read More

In Georgia, The Time To File A Caveat May Be Short And Unforgiving

August 27, 2014

Authors

Luke Lantta

In Georgia, The Time To File A Caveat May Be Short And Unforgiving

August 27, 2014

by: Luke Lantta

A recent case decided by the Georgia Court of Appeals serves as a reminder that probate court litigation often differs procedurally from other types of litigation.  So, when faced with a will contest or other probate proceeding, it’s often best to consult with someone who specializes in that type of fiduciary litigation.

In In re: Estate of Loyd, one of the heirs of Virginia Childs Loyd, Jack, tried to object to a petition to probate the will on the grounds of undue influence.  The trial court dismissed Jack’s caveat as untimely and the appellate court agreed.

After the petition to probate the will was filed, the probate court entered an order requiring certain of the heirs, including Jack, to file any objections to

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“Best Interest Of The Estate” Is Not The Same As “Good Cause”

November 19, 2013

Authors

Luke Lantta

“Best Interest Of The Estate” Is Not The Same As “Good Cause”

November 19, 2013

by: Luke Lantta

Holding real property can be a huge financial drain on an estate.  There are a lot of reasons why it might make sense to try to sell property rather than maintain it during the administration of an estate.

In Georgia, when it comes to selling estate property, however, it makes a difference whether it is a personal representative selling the property or whether it is a temporary administrator selling the property.  Because, as the Georgia Court of Appeals made clear in In re Estate of Price, a different standard will apply based on the authority of the fiduciary selling the property.

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Equity Will Not Interfere With Plain Language Of Trust Instrument And Trust Settlement Agreement

August 6, 2013

Authors

Luke Lantta

Equity Will Not Interfere With Plain Language Of Trust Instrument And Trust Settlement Agreement

August 6, 2013

by: Luke Lantta

Just how controlling is a trust instrument?  Even though a court may have the equitable power to modify a trust instrument or trust settlement agreement, the Court of Appeals of Michigan‘s opinion in In re George W. Scheer Inter-Vivos Trust reminds us of just how reluctant a court may be to allow equity to interfere with the plain language of a trust.

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Employment Codicil To Will Did Not Provide For Lifetime Employment

July 30, 2013

Authors

Luke Lantta

Employment Codicil To Will Did Not Provide For Lifetime Employment

July 30, 2013

by: Luke Lantta

Consider a situation where a wealthy testator wants his son to be provided for but still also wants his son to develop a healthy work ethic.  Can the wealthy testator’s will ensure lifetime employment for a beneficiary?  Maybe, but probably not when that lifetime employment is with a company the officers and directors of which owe fiduciary duties to the corporation and its creditors.

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Personal Representative Of Estate Breached Fiduciary Duty By Flipping Property He Purchased From Estate

July 25, 2013

Authors

Luke Lantta

Personal Representative Of Estate Breached Fiduciary Duty By Flipping Property He Purchased From Estate

July 25, 2013

by: Luke Lantta

Yes, executors sometimes purchase estate property.  But, when they do, they need to be awfully careful about breaching the fiduciary duties they owe the estate beneficiaries.  It’s common to see real property deeded in equal shares to siblings, and one sibling (who is also executor) purchases his or her other siblings’ interests for an emotional reason like owning the family farm.  If the executor knows something about the value of that property that the beneficiaries don’t know and intends to flip the property after acquiring the property in fee simple, that’s when problems can arise.

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Dispute Over Fair Market Value Of Real Property Held By Estate

June 18, 2013

Authors

Luke Lantta

Dispute Over Fair Market Value Of Real Property Held By Estate

June 18, 2013

by: Luke Lantta

When it comes to property taxes, a fiduciary usually ends up having to balance some interests.  An executor or trustee may want to cut the tax bill for real property held by the estate or trust, but that means establishing a lower fair market value of the real property.  A recent case out of Minnesota, In re Estate of Wingen, reminded us of that tension.

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Trustee Who Allegedly Breached Fiduciary Duty Denied Admission To Ohio State Bar

March 28, 2013

Authors

Luke Lantta

Trustee Who Allegedly Breached Fiduciary Duty Denied Admission To Ohio State Bar

March 28, 2013

by: Luke Lantta

The potential fallout for an individual trustee who has breached a fiduciary duty can extend beyond a judgment against him or her.  In In re Application of Wiseman, the Supreme Court of Ohio held that a bar applicant who “engaged in prohibited self-dealing while serving as the fiduciary of a trust” would not be admitted to the state bar.

Although the Ohio Supreme Court identified additional “underlying improprieties” that prohibited the applicant’s admission to the bar, the court separately identified “probate litigation” and “breach of fiduciary duties as trustee of life insurance trust” as several of the grounds for disapproving the applicant’s application for admission to the state bar.  Let’s take a brief look at these two issues which might give already-licensed attorneys some pause about serving as fiduciaries.  Because if it’s grounds for denial

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Who Should An Expert On Testamentary Capacity Talk To Before Rendering An Opinion?

February 27, 2013

Authors

Luke Lantta

Who Should An Expert On Testamentary Capacity Talk To Before Rendering An Opinion?

February 27, 2013

by: Luke Lantta

Whether a testator had the requisite capacity to execute a will is often the subject of lay testimony.  We’ve frequently talked here about how important the testimony of the drafting attorney, the attesting witnesses, and the notary are in undue influence or lack of testamentary capacity cases.  But, sometimes it may be worth getting an expert to testify in these cases especially when there may be some complex capacity issues.  If you get an expert, however, there’s still the issue of qualifying him or her.

And, even if you have an expert, here’s another reminder of how important the drafting attorney and witnesses to the will are.  In Fowler v. Kulhowvick (Rule 1:28 decision), a Massachusetts probate court actually rejected the expert testimony of a psychologist who failed to interview the drafting attorney and witnesses before offering an opinion on

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