November 4th, 2011

It’s not uncommon for couples to divorce and remarry each other or separate and contemplate divorce but stay married.  If a couple does reconcile, they probably want to make sure they review and clean-up any estate planning done during the separation or after the divorce but before the remarriage.

In Steffens v. Evans, a Florida Court of Appeals ruled that a wife waived all of her beneficial rights under her husband’s will by executing a post-nuptial agreement after the husband had executed his will. (more…)

September 28th, 2011

Iowa’s Code contains strict limitations on what acts a conservator can take without prior court approval.  For example, Iowa Code section 633.647 provides that “[c]onservators shall have the following powers subject to the approval of the court after hearing on such notice, if any, as the court may prescribe: . . . [t]o invest the funds belonging to the ward.”  (Emphasis added.)

On their face, these limitations seem like a lot of unnecessary hassle, increase the fees and expenses of conservatorships, and potentially cause the conservatorship estate to miss out on financial opportunities.  On the other hand, the statutory limitations would also seem to protect conservators who get the court’s blessing before taking any acts that might jeopardize the ward’s assets.

In In the Matter of the Conservatorship of Rose V. Alessio, the Iowa Supreme Court answered the question of what happens to a conservator who fails to get court approval before investing a ward’s property.  The answer appears to be that prior approval doesn’t really matter.  Conservator liability will rest on whether there is a showing that there was otherwise a breach of fiduciary duty owed by the conservator to the ward. (more…)

September 12th, 2011

A lot of family trust disputes get resolved either through pre-litigation settlement agreements or pre-trial settlement.  Unfortunately, poor drafting of a settlement agreement often defeats the purpose of the original settlement by leading to litigation concerning the settlement agreement itself.  In Purcella v. Purcella, the Wyoming Supreme Court reminds us that if you are going to enter an agreement altering the terms of an original trust, you need to be explicit that you are actually altering the terms of the original trust. (more…)

August 12th, 2011

Last month, Hawaii added itself to the growing list of states that permit trusts that are both dynasty trusts and asset protection trusts by enacting the Permitted Transfers in Trust Act.  The Governor’s office described the law as “strengthen[ing] Hawaii’s trust laws and allow[ing] Hawaii to compete with other states in this growing industry.”

So, how does Hawaii stack up against other asset protecting states? (more…)