Thursday, February 18, 2016
There can be terrible consequences for beneficiaries when an executor fails to properly administer an estate. Executors possess broad authority to control all aspects of an estate, and the value of an estate can be diminished if they act improperly. This column discusses some of the rights that beneficiaries have when it comes to taking action to enforce both the estate and the executor’s fiduciary obligations. This article provides a list of the type of executor misconduct that can devalue an estate. Beneficiaries do have rights to not have the value of their estates mismanaged by an incompetent executor who can be subject to court oversight. The type of remedies that a beneficiary would be entitled to depends on the situation, but beneficiaries need to take action as soon as possible if they suspect that an executor might be improperly administering an estate.
See Robert F. Morris, What Can I Do If Executor Abuses Estate?, The National Law Review, February 17, 2016.
The SEC is going to place more scrutiny on retirement advisers through its Office of Compliance Inspections and Examinations (OCIE). “As was true in 2015, OCIE has placed “examining matters of importance to retail investors, including investors saving for retirement” at the top of its list of exam priorities for this year.” The OCIE is conducting examinations of SEC-registered investment advisers and broker-dealers through a multi-year targeted examination program called the Retirement-Targeted Industry Reviews and Examinations Initiative (ReTIRE). This will be in addition to the Department of Labor’s recent efforts to increase scrutiny on retirement advisers. It is important for advisers to put in place a deeply ingrained fiduciary best-practice structure that covers ERISA and securities regulations. Taking the necessary steps to adopt better practices will put advisory firms in a good position to prepare for OCIE and DOL regulations.
See Blaine F. Aikin, Not just the DOL: Retirement plan advisers must prepare for increased SEC scrutiny, Investment News, February 18, 2016.
Monday, February 15, 2016
The business structure known as a limited liability company (LLC) is becoming more popular with business owners who want to limit their legal exposure. “When a business is incorporated as an LLC, the owner or partners' personal assets are generally protected from litigation or from being used to repay the company's debts.” This article discusses the steps an LLC will need to follow when deciding to purchase stock. The first step involves establishing the LLC by following the registration requirements of the state that the LLC is going to be established in. Usually a person will file the LLC articles of organization through the Secretary of State’s office. It is also important to have an operating agreement that clearly expresses the authority of designated owners and managers to purchase stocks on behalf of the company.
See How to Buy Stocks on Behalf of an LLC, My San Antonio, February 12, 2016.
Friday, February 12, 2016
There have been a number of cases recently where financial advisers and sellers who had “blue-chip reputations have been accused of either staggering incompetence or outright fraud that led to multimillion-dollar losses.” People need to be careful when they are seeking out the advice of a professional because there can be times when the advice might not be good. This article discusses some of the high profile cases involving disputes with financial advisors. One of the cases that this article mentions involves the family of William Davidson, the former owner of the Detroit Pistons. This article also addresses some of the problems that can take place in the art collection world with trusted collectors and buyers. It is always important for investors to be prudent and to not always blindly trust people claiming to be experts.
See Patricia Cohen, When the Supposed Experts Lead Buyers Astray, The New York Times, February 12, 2016.
Thursday, February 4, 2016
This column provides a breakdown of elder abuse statistics in the State of Minnesota which has recently established an award-winning system that audits how court appointed handle the finances of people with dementia. Elder financial abuse is a growing problem as the American population continues to age. State governments will need to adopt policies to stay ahead of this problem. In this article is a chart that represents the number of audits that were done on conservatorship accounts “under the online Minnesota’s Conservator Account Auditing Program (CAAP).” This growing concern and awareness about the problem of elder financial abuse is not just going to be limited to the State of Minnesota but is instead an issue of national importance. Policy makers should consider crafting policies to tackle this issue so that vulnerable senior citizens can be protected.
See Jim Foster, Elder abuse cases, by the numbers, Star Tribune, January 30, 2016.
Monday, February 1, 2016
Serving as an executor is a very difficult task that carries with it many legal responsibilities. An executor should be careful to not pay bills be careful and should instead get a good grasp of the estate’s financial situation. They should also be careful not to use the estate’s assets to play the market, and they should avoid mishandling real estate. Executors also need to be aware of the tangible assets that belong to the estate to avoid losing any of them. “Executors must find all of the deceased’s assets and sort through all of their personal belongings to account for the entire estate, says Victor Ngai, an executive at Guardian Life Insurance Co. of America in New York.” Being an executor is a tough job and a person needs to be well prepared for dealing with all their fiduciary responsibilities.
See Veronica Dagher, The Biggest Mistakes Executors Make, The Wall Street Journal, January 31, 2016.
Special thanks to Jim Hillhouse for bringing this article to my attention.
Friday, January 29, 2016
The Obama administration is close to approving a new controversial investment advice rule that will deal with retirement accounts. “The Department of Labor sent the so-called fiduciary rule to the White House’s Office of Management and Budget (OMB) for final approval Thursday.” This new fiduciary rule proposal will be made public once the White House signs off on it. It will raise the investment standards for retirement advisors and require them to act in the best interest of their clients. The new proposed rules would also try to prevent advisers from purchasing expensive investment products that will benefit them more than their clients. Critics of the new proposed rules say it will impose more costs and burdens on investment advisers who will then have to pass the increased costs their services onto consumers.
See Tim Devaney, Retirement advice rule nears White House approval, The Hill, January 29, 2016.
Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.
Tuesday, January 26, 2016
The duty of an executor to locate all heirs who are entitled to a share in the assets of an estate is something that is recognized in many jurisdictions. The difficulty involved with the process of locating heirs will often depend on the Will and the circumstances surrounding the specific situation. This article discusses some of the self-help remedies that executors can use to locate heirs. The executor might also want to consider hiring a professional researcher if the task of locating heirs becomes too difficult or complex. It is important for the executor to make a “reasonable effort” to find the heirs in order to fulfill the required standard that this column discusses.
See Suzana Popovic-Montag and Ian M. Hull, The Process of Locating The Heirs of an Estate, The Huffington Post, January 25, 2016.
Monday, January 25, 2016
An appeals court in Florida has upheld a $350,000 judgment for a lawyer who sued a former client for defamation over negative reviews that the client posted about the lawyer on the internet. In this case the client had posted reviews that claimed the attorney charged the client “four times the amount of fees originally quoted, that she lacked integrity, and that she falsified a contract.” The court of appeals rejected the defendants First Amendment argument holding that their review had made factual allegations that the evidence showed to be false. The reviews that a person posts online can have a negative impact on a person’s livelihood, especially if they are making false and libelous allegations about that person.
See Lawyer Awarded $350,000 Based On Negative Online Reviews Posted By Former Client, Law Office of Donald D. Vanarelli, January 22, 2016.
Sunday, January 24, 2016
The Colorado Supreme Court has recently reexamined the issue of whether an attorney can be held liable to a non-client in a legal malpractice lawsuit. In Baker v. Wood, the court affirmed Colorado’s general history of classifying claims of attorney malpractice by non-clients as being untenable. “Historically, in Colorado, attorneys have been liable to non-clients only for fraud, malicious conduct, and negligent misrepresentation resulting in business-related pecuniary losses.” The ruling means that an attorney does not owe a legal duty of care unless there is some sort of an attorney-client relationship. There are many important public policy reasons for having such a strict privity rule. An attorneys liability should not be extended to include an unforeseeable and potentially unlimited number of claims from third parties who they never even represented. The decision by the Colorado Supreme Court can be read here.
See Miles Buckingham, Colorado Supreme Court’s Baker Opinion Affirms Narrow Window of Liability for Attorneys, Nemirow Perez P.C., January 20, 2016.
Special thanks to Professor Jerome Borison (Sturm College of Law, University of Denver), for bringing this opinion to my attention.