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
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….
Trustees & Standing to Appeal, Aggrieved
For a party to appeal a trial court’s judgment, the party must be “aggrieved.” A litigant is “aggrieved” when the judgment operates prejudicially and directly on his or her property rights or interest. Weldon Revocable Trust v. Weldon, 231 S.W.3d 158, 168 (Mo. Ct. App. 2007). In the context of trusts and decedent estates, it…
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…
Fraud Under the Probate Code
Fraud under the probate code is a legal claim in Missouri codified in Section 472.013 RSMo. It states as follows: Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this code, or if fraud is used to avoid or circumvent the provisions or purposes of this code,any person injured…
Administrator Ad Litem Pending Will Contest
There is a certain period of time to challenge the validity of a Will in Missouri. If no timely challenge is made, then any challenge is barred and the Will is binding. Assuming that a Will contest is timely initiated, several procedural and substantive mechanisms come into play and become available, particularly as applied to…
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…