February 25th, 2013

There are reasons why trust beneficiaries may want to waive or disclaim their interests in a trust.  But, if multiple class members intend or agree to collectively waive their interests, they may want to make sure that each class member actually waives his or her interest.  Otherwise, as we recently saw in the Georgia Supreme Court’s decision in White v. Call, the holdouts may wind up with everything. (more…)

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…)

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…)

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…)

January 25th, 2012

Pam Crisp filed a petition in a Georgia probate court seeking removal of Mark Bocker as administrator of her stepfather’s estate and damages for Bocker’s alleged breach of fiduciary duties.  After a hearing, the probate court removed Bocker as administrator, appointed the county administrator as Bocker’s successor, and awarded damages to Crisp.  Bocker appealed the judgment to superior court.

The trial of the case was set for December 15, 2010.  Two days before the trial was set to begin, Bocker’s attorney filed a motion for continuance and noted that opposing counsel consented to a continuance of the matter until January 26, 2011.  This continuance was granted.

Two days before the trial was set to begin, on January 24, 2011, Bocker filed an amended motion for continuance.  This continuance was not granted, and neither Bocker nor his attorney appeared at the trial.  That did not work in Bocker’s favor. (more…)

January 5th, 2012

There isn’t some magic language necessary to create a trust.  Generally, all you need is an expressed intent to create a trust and some property.  Sure, trust codes and common law  require a trustee, trustee duties, and adherence to the rule against perpetuities, but you get the idea.  Nevertheless, there is always a surprising amount of litigation over whether certain language in a will or other document creates a trust.

In Estate of Brill, the Mississippi Supreme Court was tasked with construing some language in a holographic will to determine what, exactly, the testator meant by the language.  The question was whether the language conveyed property in fee simple, created a condition precedent or created a testamentary trust.

Let’s take a look at the contents of Bobbye N. Brill’s holographic will. (more…)

November 14th, 2011

While a testator’s desires about how property should be divided may be easy, the testamentary schemes that actually effect the disposition of that property can be painfully complex.  Aggrieved beneficiaries and plaintiffs’ lawyers often try to exploit the complexities of actually distributing the property rather than attacking the testator’s simple overall desire as to how the property should be divided.  In other words, an aggrieved beneficiary may try to claim that the testator should know the specific mechanics of how the property will be divided rather than simply understanding who gets what.

In Cychosz v. Cychosz, the testator, Stella Cychosz, had a relatively simple testamentary scheme that involved moderately complex mechanics regarding the disposition of the property.  One of the estate beneficiaries claimed that Stella didn’t have full knowledge of significant portions of her will.  The Wisconsin Court of Appeals disagreed. (more…)

November 9th, 2011

On November 3, 2011, the Florida Supreme Court approved the Appellate Court Rules Committee’s proposed rule changes to the Florida Rules of Appellate Procedure.  Among the changes to the Florida Rules of Appellate Procedure is the addition of a new Rule 9.170, which governs appeal proceedings in probate and guardianship cases.

Because probate court cases often involve a number of different issues that are akin to a bunch of separate lawsuits all under one probate umbrella, the new rule helps clear up the question of what types of orders are appealable orders. (more…)