Trust BCLP

Trust BCLP

removal of trustee

Main Content

Not All Uniform Trust Code States Are Created Equal

July 15, 2014

Authors

Luke Lantta

Not All Uniform Trust Code States Are Created Equal

July 15, 2014

by: Luke Lantta

Even if a state has ‘adopted’ the Uniform Trust Code, you still need to compare the actual UTC language against the language in that state’s ‘uniform’ trust code – including definitions.  The United States Tenth Circuit Court of Appeals’ decision in Kastner v. Intrust Bank draws our attention to how Kansas – a UTC state – has departed from the UTC’s definition of “qualified beneficiary,” which had major consequences for a beneficiary of a trust.

Jessie I. Brooks executed a revocable trust that provided distributions would be made to Ms. Brooks during her lifetime and, upon her death, continued for the benefit of her daughter, Nola Mae Wills.  The trust also provided that the remainder of the trust’s assets, if any, would be distributed to Ms. Brooks’ grandson, Kristofer Thomas Kastner, upon the death of his

Read More

No Liability for Trust Protector in McLean v. Ponder

January 7, 2014

Authors

Kathy Sherby

No Liability for Trust Protector in McLean v. Ponder

January 7, 2014

by: Kathy Sherby

The Missouri Court of Appeals recently issued an opinion in Robert T. McLean Irrevocable Trust v. Ponder,[1] a case involving the question of whether a Trust Protector could be held liable in not exercising the right to remove and replace the Trustees of a special needs Trust.

The Robert T. McLean Irrevocable Trust (the “Trust”) was created with settlement proceeds from Robert McLean’s (“Robert”) personal injury case.  Ponder was appointed “Trust Protector” of the Trust with the right to remove the Trustee and appoint a successor Trustee.  The Trust Protector was also given the right to appoint a successor Trust Protector and to resign as Trust Protector.  The Trust also provided that the “Trust Protector’s authority was conferred in a fiduciary capacity” and that the Trust Protector was not liable for any actions taken “in good faith.”  The

Read More

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.

Read More

Changing Trustees When The Trust Instrument Lacks A Portability Clause

June 6, 2013

Authors

Luke Lantta

Changing Trustees When The Trust Instrument Lacks A Portability Clause

June 6, 2013

by: Luke Lantta

Today, portability clauses in trust instruments are relatively common and for good reason.  Individuals die and corporate fiduciaries merge, consolidate, acquire, and occasionally close.  Likewise, some jurisdictions are simply more advantageous than others.  But, we know that the inclusion of portability clauses in trust instruments hasn’t always been the norm.  The Uniform Trust Code, however, contemplates situations where it may make sense to change trustees and many states that have not adopted the UTC have also come to the same realization through their own trust codes, statutes, or common law.

While the UTC and various jurisdictions have contemplated a number of situations that may call for a change in trustees absent a provision in the trust instrument permitting a change, in In re McKinney, the Superior Court of Pennsylvania for the first time interpreted that provision in Pennsylvania’s Probate, Estates, and Fiduciaries

Read More

Illinois Supreme Court Punts Question Of Whether Doctrine Of Election Extends To Challenges To Trust Amendments

May 2, 2013

Authors

Luke Lantta

Illinois Supreme Court Punts Question Of Whether Doctrine Of Election Extends To Challenges To Trust Amendments

May 2, 2013

by: Luke Lantta

In Estate of Boyar, the Supreme Court of Illinois had an opportunity to address an important question of Illinois trust law:  whether the “doctrine of election” applicable to will contests should be extended to challenges to amendments to living trusts in cases where the trust serves the same purpose as a will.  The trial court decided it did.  The Illinois appellate court also decided it did.  The Illinois Supreme Court, however, decided that there was no reason for the lower courts to address whether the doctrine of election should be extended to living trusts because that doctrine couldn’t be invoked under the circumstances present in the case.  Nevertheless, we get some good insight into when the doctrine of election could come into play in whatever contexts it might be applicable.

First, some quick facts.

Read More

Insurance Company Not Liable For Cutting Life Insurance Check To Wrong Trust

April 24, 2013

Authors

Luke Lantta

Insurance Company Not Liable For Cutting Life Insurance Check To Wrong Trust

April 24, 2013

by: Luke Lantta

Thomas and Michael Tessier allegedly bilked Frederick and Thaddeus Jakobiec and the estate of their mother, Beatrice Jacobiec, out of millions of dollars.  One part of that scheme allegedly involved the theft of approximately $100,000 in life insurance proceeds due a trust benefiting Thaddeus.   After Beatrice’s death, Thomas was rummaging through Beatrice’s items and found that a life insurance policy existed on the life of Beatrice.  That policy was payable to a trust known as the Smillie Trust.  So began this alleged criminal enterprise.

Thomas and Michael filed an ex parte petition to remove Frederick as trustee and install Michael as the trustee of the Smillie Trust for the benefit of Thaddeus.  Nearly simultaneously, Thomas fraudulently created a second trust for Thaddeus.  Through alleged fraud, forgery, and subterfuge, Thomas convinced the insurance company to pay the death benefit to the

Read More

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.

Read More

There Is A Difference Between Individual And Representative Capacities

July 11, 2012

Authors

Luke Lantta

There Is A Difference Between Individual And Representative Capacities

July 11, 2012

by: Luke Lantta

In fiduciary litigation cases, it’s common to encounter courts and practitioners who don’t really appreciate the difference between a litigant’s individual capacity and that litigant’s representative, fiduciary capacity.  In other words, the two capacities tend to get conflated.

In Beekhuis v. Morris, a Florida appellate court reminds us that there really is a difference between someone acting individually and that same person acting in a representative capacity as a fiduciary.

Read More

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?

Read More

Federal Court Tackles Probate Exception And Failure To Join Necessary Parties In Trust Dispute

February 9, 2012

Authors

Luke Lantta

Federal Court Tackles Probate Exception And Failure To Join Necessary Parties In Trust Dispute

February 9, 2012

by: Luke Lantta

Pursuing fiduciary litigation cases in federal court can be tricky.  Not only does a plaintiff have to contend with the possibility of jurisdiction destroying defendants, but a plaintiff also has to deal with the ‘probate exception’ to federal jurisdiction.

In Downey v. Keltz, the United States District Court for the Northern District of Illinois did a succinct job of explaining that a petition for an accounting does not implicate the ‘probate exception’ and likely does not require that all trust beneficiaries be parties to the litigation.  A petition to remove a trustee, however, likely would invoke the ‘probate exception’ and would require all trust beneficiaries to be parties to that litigation.

Let’s take a look at how the Court got there.

Read More
The attorneys of Bryan Cave Leighton Paisner make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.