Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

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)

Gubernatorial Candidate Invests with Scam Artist

JailEstate 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. His punishment will be determined sometime next month. Gubernatorial candidate for Virginia, Terry McAuliffe was one of many who invested with Caramadre. Despite his role as an investor, there is no evidence that McAuliffe had any knowledge about what Caramadre was apart of. A spokesperson on Mr. McAuliffe's behalf claims that he made a $47,000 profit from his investments with Caramadre. As a result, he has donated that same amount to the American Cancer Society.

See Mark Maremont, Virginia's McAuliffe Was Investor With Convicted Estate Planner, The Wall Street Journal,  Oct. 10, 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 19, 2013 in Current Events, Non-Probate Assets, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 8, 2013

Municipal Court Judge Candidate Removed From Guardianship Position in 10 Cases

GuardianshipMunicipal Court judge candidate, Gretchen DeBacker was removed from ten guardianship cases for not filing mandatory reports on time. Her duty as a guardian was to look after the affairs of those who a judge had already deemed incompetent. She was removed from the ten cases over a five-year time span. DeBacker is running in the general election as a democratic judge. Currently, the position is filled by Joshua Lanzinger  a Republican appointed to the position. The election will take place on November 5. When asked about being removed from the ten cases DeBacker acknowledged her mistakes, "“It wasn’t anything to hurt the clients. It was simply my failure to show the status of my work to the court. Probate Court is not my regular or main area of practice. It’s not an excuse it’s simply an explanation.”  DeBacker does not have a disciplinary record.

See Tom Troy, Candidate Was Taken Off Guardianship Cases 10 Times,  Oct. 5, 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 8, 2013 in Current Events, Guardianship, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 1, 2013

CLE on Ethical Issues For Estate Planners

CLEThe American Law Institute Continuing Legal Education (ALI CLE) and the American College of Trust and Estate Counsel (ACTEC) are cosponsoring a telephone seminar and audio webcast entitled, Current Ethical Issues for Estate Planners, on Wednesday, October 9, 2013.  Provided below is a description of the event:

The ethical challenges that an estate planning lawyer faces differ greatly from those encountered by other lawyers: representation of more than one family member, a client who is both a fiduciary and a beneficiary, communicating with family members who do not have legal representation, confidentiality issues, etc. Such varied scenarios not only lead to uncommon ethical problems, but also increase exposure to malpractice claims.

Register today for this timely  program, taught by Fellows of the American College of Trust and Estate Counsel,  featuring practical, real-world scenarios, so you can learn what you need to know to properly, competently, and ethically handle your clients' unique situations.

Topics include:

  • competence
  • effective and timely counsel
  • communications with clients and others
  • confidentiality of information
  • conflicts of interests
  • representing different family members in family limited partnerships

October 1, 2013 in Conferences & CLE, Estate Planning - Generally, Malpractice, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Monday, September 30, 2013

Court Refused to Grant Diversity Jurisdiction to Beneficiaries

GavelDuring the probate process of a trust, it is common for beneficiaries to be in more than one jurisdiction. Sometimes that means that the fiduciary of the estate is in a separate state than the beneficiary. In this recent case, the personal representative was from Texas but was handling a Florida estate. Following a dispute, two of the beneficiaries sued the personal representative. One of the beneficiaries was from Florida and the other was a citizen of Colorado. The beneficiaries moved to have the case moved to federal court on the basis of diversity jurisdiction.

 

In  Levya v. Daniels, 2013 WL 5313600 (11th Cir. 2013), the court held that because the personal representative was sued in his capacity as a fiduciary he was a Florida citizen for legal issues arising out of the Florida estate he was managing. As a result, the case was dismissed for lack of diversity jurisdiction. 

See Jenna G. Rubin, Levya v. Daniels , Rubin on Probate,  Sep. 26, 2013.

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

September 30, 2013 in Estate Administration, New Cases, New Legislation, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Sunday, September 29, 2013

CLE on Ethical Issues For Estate Planners

CLEThe American Law Institute Continuing Legal Education (ALI CLE) and the American College of Trust and Estate Counsel (ACTEC) are cosponsoring a telephone seminar and audio webcast entitled, Current Ethical Issues for Estate Planners, on Wednesday, October 9, 2013.  Provided below is a description of the event:

The ethical challenges that an estate planning lawyer faces differ greatly from those encountered by other lawyers: representation of more than one family member, a client who is both a fiduciary and a beneficiary, communicating with family members who do not have legal representation, confidentiality issues, etc. Such varied scenarios not only lead to uncommon ethical problems, but also increase exposure to malpractice claims.

Register today for this timely  program, taught by Fellows of the American College of Trust and Estate Counsel,  featuring practical, real-world scenarios, so you can learn what you need to know to properly, competently, and ethically handle your clients' unique situations.

Topics include:

  • competence
  • effective and timely counsel
  • communications with clients and others
  • confidentiality of information
  • conflicts of interests
  • representing different family members in family limited partnerships

September 29, 2013 in Conferences & CLE, Estate Planning - Generally, Malpractice, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)