Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

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Thursday, November 28, 2013

Article on The Fiduciary Relationship

SsrnPaul B. Miller (McGill University Faculty of Law) has recently published an article entitled, The Fiduciary Relationship (November 10, 2013). Provided below is the abstract to the article from SSRN:

Fiduciary law is rife with references to fiduciary relationships. Most notably, the attribution of fiduciary duties turns on the existence of a "fiduciary relationship." But does private law admit of such a construct, and if it does, is the fiduciary relationship distinctive relative to other kinds of private law relationship? Many fiduciary law scholars are skeptical on both counts. Leading scholars have claimed that the fiduciary relationship is indefinable. Others say that, when properly defined, the fiduciary relationship is seen to be non-distinctive. In this chapter I argue that the fiduciary relationship is both definable and distinctive. I advance a theory of the fiduciary relationship – the fiduciary powers theory – which suggests that fiduciary relationships are typified by the fiduciary’s exercise of powers derived from the legal personality of persons (normally, the person of the beneficiary or her benefactor). I argue for the viability and utility of the fiduciary powers theory by demonstrating that it can account for the fiduciary nature of relationships of recognized fiduciary status and by showing how it can help resolve disputes over the characterization of other relationships.

November 28, 2013 in Articles, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 20, 2013

Estate Planning Lawyer and Associate Pleaded Guilty to Fraud and Conspiracy

  GavelAs I have previously discussed, estate planner, Joseph Caramadre was recently convicted for stealing millions from insurance companies and bond issuers. Caramadre was taking the identities of terminally ill people and defrauding them.


Recently, a federal magistrate judge, Patricia A. Sullivan, made recommendations that will be provided to the U.S. District Court Judge, William E. Smith, for sentencing on December 16. Sullivan believes that Caramadre should be held liable for $46 million dollars as the leader of the fraudulent investment scheme and his former employee, Raymour Radhakrishnan, should be held accountable for $33 million because of his more recent involvement since 2007. Unfortunately, Sullivan still feels that the victims and their families will not be fully compensated because the court is unable to order restitution for pain and suffering.

See Katie Mulvaney Court: Cranston Estate Planner Wrought $46 Million In Losses, Providence Journal,  Nov. 7, 2013.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

November 20, 2013 in Current Events, Estate Administration, Estate Planning - Generally, Malpractice, New Cases, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Sunday, November 10, 2013

Article on Attorney Client Privilege

FiduciaryMike W.Bartolacci, Tyler Short, and Bruce Talen (Real Property, Trust and Estate Law Journal) recently published an article entitled, The Attorney Client Privilege And The Fiduciary Exception: Why Frank Discussions Between Fiduciaries And Their Attorneys Should Be Protected By The Privilege , 48 Real Prop. Tr. & Est. L.J. 1-33 (2013).  Provided below is the description:

The attorney–client privilege generally protects confidential disclosures made by a client to an attorney in order to obtain legal assistance. Many courts in the United States have weakened the privilege by applying an exception for fiduciaries who retain attorneys. The authors identify a trend to narrow or eliminate this fiduciary exception and conclude that the trend should continue because recognizing the attorney–client privilege in the fiduciary context will further the purposes of the privilege without adversely affecting the ability of beneficiaries to receive adequate information about the trust.

November 10, 2013 in Articles, Malpractice, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 5, 2013

Estate Planning Lawyer Accused of Wire Fraud and Money Laundering

JailWendy Weikal -Beauchat, Pennsylvania estate planning lawyer, is accused of embezzling more than $3 million dollars from eight clients over the past six years. She is facing federal charges. Specifically, she is being accused of wire fraud money laundering. Wendy was disbarred earlier this year.

See Martha Neil, Former Estate-Planning Lawyer Faces Federal Charges in Claimed $3M Client Theft Case, ABA Journal,  Nov. 4, 2013.

November 5, 2013 in Current Affairs, Malpractice, New Cases, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Friday, November 1, 2013

Who Should Monitor the Trustee?

Trust fidThe use of Trust Protectors is a new tool for domestic estate planners. Now, Trust Protector’s provide more oversight over the trustee actions. Trust Protectors can prevent self-dealing and incompetence. 

However, Forbes contributor, Jay Adkisson, does not believe that Trust Protectors should be managing the fiduciary activities of the trustee. He explains the role of monitoring the trustee belongs to the co- trustees or the beneficiaries. Then those individuals can bring their complaints to the Trust Protector who can remove the trustee.

See Jay Adkisson, A Critique of the Trust Protector as a Fiduciary, Wealth Strategies,  Oct. 30, 2013.

November 1, 2013 in Estate Planning - Generally, Professional Responsibility, Trusts | Permalink | Comments (0) | TrackBack (0)

Sunday, October 27, 2013

Article on Obscure Tennesee Opinion

Stmaryslogo_17Charles Epps Ipock, (St. Mary's University School of Law) recently published an article entitled, How an Obscure Tennessee Opinion Uncovers the Veil of Legal Malpractice Between Asset-Protection Trusts and the Uniform Trust Code , (In re Estate of Stidham, 2012 WL 3612386, 2012.) 3 St. Mary's J. Legal Mal. & Ethics 308-318 (2013). Provided below is the introduction to the article:

In the year 2000, the Uniform Law Commissioners approved the Uniform Trust Code (UTC). This was the first effort to provide states with an all- inclusive model for codifying their trust laws. Since then, at least twenty -three states adopted some, or most of the UTC. However, provisions within the UTC regarding asset- protection trusts.

October 27, 2013 in Articles, Malpractice, New Legislation, Professional Responsibility, Trusts | Permalink | Comments (0) | TrackBack (0)

Saturday, October 26, 2013

Five Questions to Determine an Inheritance

EstateplanningFinancial planning has put together the top five factors that estate-planning specialists should take into account when determining an inheritance. Designing an inheritance includes looking at the totality of the situation however, below are a few factors that will help achieve a better estate plan. 

  1. Is there an amount of inheritance that would deter the beneficiary from being productive?
  2. What is a good age to inherit?
  3. Are there any inhibiting issues such as drug addiction or alcoholism?
  4. Should each beneficiary be treated similarly?
  5. Who should be your fiduciary?

See Tracy Craig, Estate Plan Design: 5 Key Questions for Clients, Financial Planning , Oct. 24, 2013.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

October 26, 2013 in Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Friday, October 25, 2013

Changed Circumstances Justify a Removal of a Trustee

GavelPennsylvania’s version of UTC § 706 allows the removal of a trustee who has not committed a breach of trust if the removal is in the best interests of the beneficiaries, is not inconsistent with a material purpose of the trust, and there has been a substantial change of circumstances.

In In re McKinney, 67 A.3d 824 (Pa. Super. Ct. 2013), the court reversed the trial court’s refusal to remove and replace a corporate trustee finding that a string of mergers over several years resulting in the departure of personnel with whom the beneficiaries had worked for many years and the removal of the beneficiaries from Pennsylvania to another state satisfied the statutory prerequisite for removal. On remand, the trial court must evaluate the suitability of the proposed successor corporate trustee and reconsider the award of attorney’s fees to the removed trustee.

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.

October 25, 2013 in New Cases, Professional Responsibility, Trusts | Permalink | Comments (0) | TrackBack (0)

Thursday, October 24, 2013

Trustee Accused of Embezzling Half a Billion

JailMarco Antonio Delgado is an attorney who gave $250,000 in scholarship for Hispanic students to attend Carnegie Mellon University. Many are shocked that Delgado, ex- Carnegie Mellon trustee, is accused of conspiring to embezzle half a billion dollars for a drug cartel. His trial will be in El Paso, Texas.


Prosecutors believe that Delgado is connected to financial transactions tied to organized crime. An investigation was launched in 2007 after police had seized $1 million in Georgia. The man who was caught with the money, Victor Pimentel, implicated Delgado. 


Now, Pimentel is a key witness for the prosecution and has produced evidence of conversations between him and Delgado discussing the money laundering operation.

See Juan Carlos Llorca, Ex-Carnegie Mellon Trustee on Trial Allegedly Conspiring to Launder up to $600M for Cartel, Washington Post, Oct. 21, 2013. 

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention. 

October 24, 2013 in Current Events, New Cases, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Saturday, October 19, 2013

Baker Pleaded Guilty to Mismanaging Estate Funds

Trust me fiduciaryCourt Documents indicate that the Bennington Probate court assigned Robert F. Baker to Nada Ledinko's estate. Shortly after the appointment, Baker breached his fiduciary duty when he misappropriated funds from the Ledinko estate for personal use. Baker pleaded guilty for misappropriating more than $170,000 from an estate he was managing. A judge sentenced him to six months in jail. In addition to his jail sentence, Baker has to repay $113,000.

See Keith Whitcomb Jr., Baker Must Spend Six Months In Jail, Repay $113k For Wire Fraud, Bennington Banner, Oct. 8, 2013.

October 19, 2013 in Current Events, Estate Administration, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)