Trustees, personal representatives, attorneys-in-fact, corporate directors, limited liability company managers, etc. owe fiduciary duties. Generally speaking, a fiduciary duty is where one person has a legal obligation to act in another’s interests. Whether a fiduciary duty exists is a question of law, while breach of fiduciary duty is usually a question of fact. Scanwell Freight…
Legal Articles
Trustee Discretion in Breach of Trust Claims
“A violation by a trustee of a duty the trustee owes to beneficiary is a breach of trust.” Section 456.10-1001, RSMo. Despite this broad statutory principle, and depending on the context, a trustee can have a number of defenses to a breach of trust claim. For example, where a trust instrument grants a trustee discretionary…
Transfers in Fraud of Marital Rights in Relation to Nonprobate Transfers
A claim that a transfer of property is in fraud of marital rights is where a spouse, after the death of the other spouse, seeks to set aside and void a property transfer. It is a unique type of fraud, separate and distinct from the traditional fraud which consists of nine elements. “If established, the…
Disinheritance Clauses in Wills/Trusts
“No contest” (or in terrorem) clauses are increasingly relevant in probate, trust, estate and will litigation. The classic no contest clause provides that if a person contests the validity of a will or trust, he or she is disinherited and receives nothing by way of inheritance. The obvious purpose of the clause is to reduce…
Trust/Will Disclaimers
A disclaimer is when an individually legally relinquishes or waives his/her right to receive inheritance. Although it is relatively rare to see, sometimes it occurs for tax or estate planning reasons. In other situations, it is to try to shield assets from a creditor. There is a specific statute discussing how a disclaimer is to…
Supervised Probate Administration
Decedent estates in probate are either administered independently and without court supervision or supervised and with court supervision. While the preferred option is often independent administration, sometimes supervised administration is compelled or advisable. As the name suggests, a supervised administration requires the personal representative to seek the probate court’s approval of accountings/settlements, attorney fee payments,…
Representative Capacity versus Individual Capacity
Although it may seem unnecessarily complicated, the capacity in which a party is named in a suit matters significantly. For example, in what capacity a party is joined frequently arises in the probate litigation context. “Proceeding in a representative capacity is different than proceeding as an individual.” Singer v. Siedband, 138 S.W.3d 750, 755 (Mo….
Deadline to Probate a Will in Missouri
In Missouri, there is generally one (1) year from the date of an individual’s death to probate his or her last will and testament. “A will, to be effective as a will, must be presented for and admitted to probate.” § 473.050.1, RSMo. A will that is not timely presented for probate is “forever barred…
Constructive Trust: Unjust Enrichment and Breach of Fiduciary Duty
A constructive trust is an equitable device to “remedy a situation where a party has been wrongfully deprived of some right, title or interest in property as a result of fraud or violation of confidence of faith reposed in another.” Lynch v. Lynch, 260 S.W.3d 834, 837 (Mo. 2008). It may also provide a remedy…
Trustee Bond
A trustee’s bond is essentially an insurance policy which designates a sum of money that may be recovered to the extent a trustee mismanages a trust estate. For example, if a trustee has a bond, and misappropriates assets, a beneficiary may be able to initiate a claim for breach of trust and recover against the…