Legal Articles

Common Law Fiduciary Duties

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…

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….

Statutory and Virtual Representation, Probate Litigation

“Virtual representation” is a judge-made preclusion doctrine where an order or judgment against one party binds another. Specifically, it precludes and prevents the relitigation of a claim if “the interest of the represented and the representative are so identical that the inducement and desire to protect the common interest may be assumed to be the…

Estate Litigation; Time Limit to Appoint Personal Representative/Executor

Missouri’s probate code has two principal goals: (1) provide a speedy method for administering a decedent’s estate and (2) establish a time after which claims are forever barred against an estate. North v. Hawkinson, 324 S.W.2d 733, 736 (Mo. 1959). In furtherance of these objectives, Missouri rigidly applies a general one (1) year limitation period for…

Probate Missouri Personal Representative (Executor, Administrator)

Under Missouri Law, the Personal Representative is the individual appointed to administer and wind-up a decedent’s estate. This is essentially the same thing as an “administrator” or “executor” in other states. A court’s issuance of either Letters Testamentary or Letters of Administration will allow a personal representative to take charge of an estate. Before making…

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