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…)

August 21st, 2012

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. (more…)

May 23rd, 2012

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? (more…)

May 2nd, 2012

In Miller v. Miller, the trustees of the family trust of which Clifford Miller was a beneficiary almost completely prevailed on an appeal of a final judgment refusing to remove the co-trustees, approving a lease renewal entered into by the trustees, and awarding attorney’s fees.  So, where didn’t they prevail? (more…)

February 13th, 2012

Just a quick case update to start the week.  In December, we wrote about a Florida appellate court’s decision in Rosenkrantz v. Feit in which the court of appeals allowed one attorney-in-fact to pursue a lawsuit against her co-attorney-in fact.

Last week, the same Florida court of appeals denied the appellee’s motion for rehearing, but substituted this new opinion for the one issued in December.

December 19th, 2011

I understand why someone would want co-executors, co-trustees, co-attorneys-in-fact, etc.  Maybe it’s because they’re afraid of having too much power in one person’s hand.  Maybe it’s because they don’t want to offend a friend, child, or relative.  Maybe it’s because it may just be easier to have a few people with that power in case the other is indisposed.  I get it.  But, going in, they should also know it’s a recipe for litigation.

Co-fiduciaries often have to work unanimously – either by statute or by the underlying instrument.  Lack of unanimity leads to lawsuits.  Moreover, when, for example, one attorney-in-fact lives in the same state as the principal, the co-attorney-in-fact residing in another state may be cut out of the process.  Whether perceived or actual shenanigans exist, litigation may result.

In Rosenkrantz v. Feit, a Florida Court of Appeals considered whether one attorney-in-fact could pursue a lawsuit against her co-attorney-in-fact.  The trial court had dismissed the case on the grounds that the attorney-in-fact filing the suit had failed to state a claim against her co-attorney-in-fact.  The appellate court, however, disagreed. (more…)

December 16th, 2011

As corporate fiduciaries consolidate, merge, or otherwise combine with each other, trust departments are often tasked with administering trusts outside of their home state.  For example, a trust department in Florida may, for the first time, end up administering a New York trust.  Knowing which state’s trust law governs the administration of the trust is no small matter.

While corporate fiduciaries are usually well-acquainted with their home state’s trust code, they may not be as familiar with the trust codes and law that actually apply to that newly acquired trust relationship.  As a result, trustees may inadvertently end up administering the trust under the wrong standards by simply assuming that the home state’s trust code applies.

This is another reason why it’s so important to read every word in the trust instrument.  Even after reading the trust instrument, it’s then important to independently determine which state’s trust laws apply to the administration of the trust.  Failure to do so may either subject the trustee to liability for deviating from the applicable fiduciary duties or prevent the trustee from raising more favorable law in the event that it’s been sued.   The latter of which happened to the trustee in Corya v. Sanders. (more…)

December 2nd, 2011

We’ve previously discussed arbitration agreements in a number of contexts, including who should sign them and when courts have enforced them.  While whether to include an arbitration clause in your standard account agreement is a business decision (and you will find people with very strong opinions on both sides of this debate), if you decide to include one you better make sure that your boilerplate is up-to-date.  Especially in Florida and especially as it relates to statutes of limitation. (more…)