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Category: Probate Estate Litigation & Administration

Trustee: Personal Liability

In breach of trust and/or breach of fiduciary suits, whether a trustee is personally liable often comes up. Section 456.10-1010, RSMo provides some points of clarification on the matter: (1) Unless provided otherwise in a contract, a trustee is not personally liable on a contract if the trustee discloses the trustee/fiduciary capacity in the contract. […]

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Trust Contests: Clear and Convincing Evidence

It is generally difficult to prevail on a lawsuit to set aside and void a trust or will. “Wills are solemn acts” and “should be overturned only on proper and substantial evidence.” Switzer v. Switzer, 373 S.W.2d 930, 940 (Mo. 1964).  The evidence to justify cancellation of a will or trust on grounds of incapacity […]

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Transferring Assets to a Trust

Assets are typically only subject to the terms of a trust — and within the trustee’s control and authority — if they are owned by the trust. Assets need to be transferred to a trust in a legally precise way for the transfer to be effective. For instance, an actual deed conveying ownership must be […]

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Power of Attorney Litigation, Attorney Fees

An attorney-in-fact for a principal under a power of attorney has a fiduciary obligation to act in the best interests of the principal consistent with the terms of the power of attorney document. When an attorney-in-fact breaches his or her obligations, the principal, a family member of the principal or some other successor in interest […]

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Trustee Duty to Report and Inform

As part of a trustee’s fiduciary duties, there is an important obligation to keep beneficiaries ” “reasonably informed about the administration of the trust and of material facts necessary for them to protect their interests.” § 456.8-813, RSMo. This is flexible language and greatly depends on the facts of a particular section. However, the official […]

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Trusts: Duty of Loyalty

A trustee has a fiduciary duty of loyalty to act in the best interests of the trust’s beneficiaries. While the Settlor (i.e., trust-maker) is alive and has capacity to revoke the trust, the duties of the trustee are owed exclusively to the Settlor. Section 456.6-603, RSMo. There is typically a shift in these duties when […]

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Trust Law versus Corporate Law, Controlling Duties

When a trust owns corporate shares, do corporate fiduciary obligations or trustee obligations prevail? The answer is that generally a trustee’s obligations take priority. Upon incorporation of trust assets, the corporation becomes the alter ego of the trustees and the trustee’s acts are determined in the light of the trust. Weldon Revocable Trust v. Weldon, 231 S.W.3d 158, 171 […]

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Trusts: Beneficiary, Qualified Beneficiary, Interested Person

In trust litigation, particularly breach of trust litigation, your legal relation to the trust is extremely important in determining what claims you can make. Missouri trust law distinguishes between a “qualified beneficiary,” “beneficiary” and “interested person.” By way of example, a qualified beneficiary is typically either someone who is eligible to receive mandatory or discretionary […]

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Trial Continuances

To obtain a continuance and/or delay of a trial setting in Missouri, a party needs to comply with Rule 65.03. This requires, among other things, that the request be accompanied by the affidavit of the movant or some other credible person setting forth the facts upon which the request for continuance is based. The grant […]

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Original Wills, Duplicate Wills

When requesting that a last will and testament be probated, the original will must be presented to the Court. The reason for this is that under Missouri law “a will is presumed destroyed by the testator [i.e., will-maker] with intent to revoke if the will was last seen in possession of the testator prior to […]

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