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Category: Probate Estate Litigation & Administration

Omitted Spouse, Non-probate Transfer

Part of the reason that probate litigation is complex is because there are procedural and substantive differences in how will, trust, joint ownership and non-probate transfer disputes are handled — even though these devices are often used by individuals interchangeably. With wills, pursuant to § 474.235, RSMo an “omitted spouse” is granted the right to […]

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Power of Attorney Self-Dealing

An attorney-in-fact acting for a principal under a power of attorney instrument has a legal obligation to act in the principal’s best interests. For this reason, certain powers must be expressly authorized to be valid. Section 404.710.6, RSMo provides, in part, that there must be express written authority in the power of attorney document for […]

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Trustee Removal: Lack of Fitness, Unwillingness

Trustee removal is complex litigation. Missouri has mostly adopted the uniform trust code, which authorizes trustee removal for cause when (among other circumstances) there is “unfitness” or “unwillingness” of a trustee. Most trustee removal claims center on allegations of breach of trust, failure to effectively administer or lack of cooperation among co-trustees. However, “unfitness” and […]

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Incapacity, Business Transactions

Legally, several things happen when someone is adjudicated as incapacitated and a guardian or conservator is appointed for the protectee (i.e., the incapacitated person). Perhaps most significantly, the protectee loses his or her right to enter into business transactions. Instead, it is the conservator’s responsibility (usually with court approval) to enter into such transactions. Section […]

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Additions to Trust, Funding, Lapse

A trust is really only efficacious to the extent assets are titled and owned by the trust. To transfer assets to a trust, there must be a formal conveyance to the trust or trustee of the trust. Certain assets will have to be transferred and re-titled in different ways. With real estate, for instance, there […]

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Trusts and Supervised Administration

A primary selling point for trusts is that they are generally administered independently and outside of the court. Rather than rely on court orders and instructions, the trustee distributes the property per the directives articulated in the trust instrument. While this may be a benefit in many circumstances, sometimes it is more beneficial to have […]

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Probate Courts, Equitable Authority

Tradtionally, probate courts have had limited authority to hear and entertain only probate matters. Probate matters include but are not limited to: trust disputes, decedent estate administration, guardianships-conservatorships and power of attorney disputes. Despite probate courts having limited authority to hear certain types of matters, the probate court in Missouri has the same legal and […]

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Offsets, Equity, Damages

“Off-setting” judgements is well established in Missouri. It generally arises when there are competing claims made by different parties against each other in a lawsuit. For example, if party A wins on a $50k claim against party B, and party B wins on a counterclaim of $60k against party A, a court may enter an […]

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Link Hearing, Guardianships-Conservatorships

Guardianship-conservatorship proceedings are subject to their own procedural and substantive rules. The general gist of the proceeding is that a petitioning party alleges that someone else is incapacitated and that the petitioner (or someone else) should be appointed as a guardian to protect the incapacitated person’s person and a conservator should be appointed to protect […]

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Trust Termination, Trustee Final Accounting

Unless there are specific terms in a trust document providing otherwise, a trust terminates and ends generally when the “trustee gives a final accounting and conveys the trust property to the beneficiaries.” Shannon v. Johnson, 741 S.W.2d 791, 794 (Mo. Ct. App. 1987). A trust’s termination date is important for numerous reasons, not the least of […]

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