February 14th, 2013

James R. Franta named Roberta Peery as the personal representative of his estate.  But a Minnesota district court determined that she was “unsuitable” for appointment under the Uniform Probate Code.  In In re Estate of James R. Franta, the Minnesota Court of Appeals agreed.  Why wouldn’t these courts uphold the decedent’s intent? (more…)

January 17th, 2013

Well, probably not in Georgia.  If someone is behind the scenes pulling the strings to “initiate” legal proceedings, then that person – who didn’t actually file a caveat him or herself – may have violated the in terrorem clause.

In the first appearance of Norman v. Gober before the Georgia Supreme Court in 2011, the Court decided that eleven-year-old William Howard Norman, the grandson of Margaret Susan Scheer, lacked standing to challenge Scheer’s will because Norman was not an heir-at-law when the caveat was filed.  Norman was a contingent residuary beneficiary under Scheer’s will.  In other words, even if Norman’s caveat was successful, he would still take nothing.  As the Georgia Supreme Court put it, Norman was not “a person who will be injured by the probate of [the] [W]ill, or who will benefit by its not being probated.”  Actually, Norman would have benefited by the probate of the will because it’s the only way he could possibly have had any chance to take a part of Scheer’s estate.

Norman’s mother, however, stood to benefit if the caveat was successful.  At the time, the Georgia Supreme Court actually stated that it appeared that the caveat was undertaken for the benefit of Norman’s mother, not him. But, why didn’t Norman’s mother, Lyncia Aynes Norman, file the caveat herself? (more…)

December 6th, 2012

When someone dies, creditors may often come out of the woodwork.  That doesn’t mean they should be ignored.  That’s true even if you don’t think they have a good claim as a creditor and even if the estate doesn’t have any assets. (more…)

September 14th, 2012

Lawyers like to get paid.

Clients like it if they can get someone else to pick up the tab for their lawyer’s fees.

That’s why a Florida appellate court’s decision in Bonney v. Bonney stings. (more…)

June 18th, 2012

Some personal representatives take the position that they’ll either distribute all or none of the estate.  Other personal representatives are willing to make a partial distribution of estate assets only if each beneficiary gets an equal partial distribution.  Both situations can be maddening to a beneficiary who just wants to receive something from an estate rather than watch it sit in probate for years until there’s some liquidity.

Often, the personal representative’s justification for not making a partial distribution is illiquidity of estate assets.  Where real property is involved, the current real estate market compounds the problem of illiquid estate assets.  So, what’s a personal representative to do?  A recent opinion out of Missouri gives personal representatives in that state some guidance. (more…)

June 11th, 2012

In an attempt to provide certainty to property rights, the Utah Legislature included in the Utah Probate Code a provision that limits certain proceedings where neither an heir nor a creditor has requested the administration of an estate within three years of the decedent’s death (Utah Code 75-3-107).

In In the Matter of the Estate of Eleanor Strand, a party alleged that this limitation extended to the ability of the probate court to appoint a personal representative of an intestate estate more than three years after the decedent’s death.  Not so, said the Utah Court of Appeals, and here’s why. (more…)

May 9th, 2012

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. (more…)

April 4th, 2012

Let’s say that you have a will executed in 2005 that provides something like “I give all the residue of my estate, including my homestead, to the Trustee serving under my Irrevocable Trust Agreement dated October 26, 1999, as amended or hereafter amended.”  In other words, you have a trust incorporated into the  will. 

Now, let’s say you want to challenge the validity of that trust.  What should you do when you receive a notice of administration regarding that 2005 will? (more…)

March 19th, 2012

We get asked a lot about two categories of cases: (1) cases about discretionary distributions; and (2) cases about concentrations and diversification.  And, it’s easy to understand why – fiduciaries are often given a great amount of discretion in exercising their duties, but then may get sued over it.  While there seems to be a growing number of decisions dealing with matters like undue influence and lack of capacity, the numbers of authorities regarding the exercise of discretionary powers and diversification/concentrations are still limited.

That’s why when an opinion like that of the Illinois Court of Appeals in Carter v. Carter comes along, we have to take notice.  In this case, the court considered a breach of fiduciary duty claim arising from the trustee’s alleged strategy of investing only in tax-free municipal bonds.  The appellate court determined that this strategy did not violate the prudent investor rule or any fiduciary duty owed by the trustee.  Let’s see why. . . (more…)

March 12th, 2012

It seems like the Georgia appellate courts are on a little bit of a run when it comes to addressing the limited jurisdiction of Georgia’s probate courts.  Interestingly enough, the latest opinion on limited probate court jurisdiction also involves a petition for year’s support.

In In re Mahmoodzadeh, the Georgia Court of Appeals explained how a probate court should handle an award of year’s support when title to the subject property is disputed.  The case highlights that when it comes to petitions for year’s support, the available objections are extremely limited. (more…)