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314.283.8930; henry@elsterlaw.com

Voidable Transactions, Trustee Conflicts of Interests, Duty of Loyalty

A trustee owes a fiduciary duty to a beneficiary. Therefore, a trustee is generally not permitted to enter into any transaction that is a conflict between the trustee’s personal interests and fiduciary responsibilities, unless (1) the transaction was authorized by the trust, (2) approved by the Court, (3) consented to or ratified by the beneficiaries, […]

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Trust Litigation: Breach of Fiduciary Duty, Breach of Trust

Trustees are fiduciaries who must act in the best interests of the beneficiaries. To win on a claim of breach of fiduciary duty or trust, a plaintiff needs to prove that there is a (1) fiduciary duty, (2) a breach of that duty, (3) causation and (4) harm/damages. Matter of Wilma G. James Trust, 487 […]

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Modifying Irrevocable Trusts by Consent

When Missouri updated its trust laws in around 2005, several statutes were added that permitted irrevocable trusts to be modified. An irrevocable trust, as the name suggests, is generally not subject to amendment or change. Most revocable trusts become irrevocable and not subject to change after the settlor/trust-maker dies. The problem is that many irrevocable […]

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Successor Trustee Authority, Release of Liability

The general rule in Missouri is that successor trustees, unless the terms of the trust document say otherwise, possess all of the duties and authority of the initial trustee and/or any predecessor trustee. Therefore, a successor trustee usually possesses all of the “specific powers” of a trustee articulated in Section 456.8-816, RSMo. One of the […]

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Corporate Derivative Shareholder Claims, Beneficiary Trust Claims

With corporations, the directors and officers manage the corporation for the benefit of the shareholders. With trusts, the trustees manage the trust for the benefit of the beneficiaries. When a corporate officer/director commits a wrong against the corporation, or causes another injury to the corporation, a shareholder can bring a derivative on behalf of the […]

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Trusts, Principal Place of Administration

Trust litigation can often involve interstate disputes as to what state and county should hear and entertain the litigation. This is because trusts will often involve family members, trustees and beneficiaries who reside in different states. Many states have adopted the Uniform Trust Code as a means of providing more consistent laws on how trusts […]

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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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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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Trustee Vacancies

A vacancy in trusteeship occurs when a trustee declines the trusteeship, the trustee cannot be located, resigns, dies, is disqualified/removed, or is found to be legally incapacitated. Under Missouri law, when there is a vacancy in a trusteeship it must be filled in the following order of priority:  (1) By a person designated in or […]

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Trust Fraud Challenge

Lack of testamentary capacity and undue influence are the two most common bases for challenging the validity of a revocable living trust. Though rare, however, it is possible to challenge a trust based on fraud. A trust is void to the extents its creation was induced by fraud, duress or undue influence. Section 456.4-406 RSMo. […]

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