Videotaping As Possible Way To Preclude Estate, Trust & Probate Litigation

You may remember a movie from 15 or so years ago called "My Life," starring Michael Keaton and Nicole Kidman, in which a terminally ill man films a video for his unborn child to watch after the man passes away after a fight with cancer.  The father essentially wanted the child to know who the father was and what the father had learned in his own life, since he would not be around when the child was growing up. 

While the movie was not focused upon an estate or trust battle, I was still reminded of "My Life" yesterday when reading the December 7, 2009 post on the Wills, Trusts & Estates Prof Blog, which had an interesting link to a December 3, 2009 Wall Street Journal article written by Kristen McNamara and entitled "Lights, Camera . . . Last Words."  The article discussed videos as a way of allowing the dying to say a few last words and also possibly prevent legal disputes regarding property division after death.  Here is an excerpt from the Blog and the article itself:

"Some individuals have found a way to breathe life into dry estate-planning documents: They're supplementing them with personal messages via video.

With guidance—and caveats—from attorneys and financial advisers, some elderly and terminally ill individuals, and even some young parents, are picking up video cameras or hiring professional videographers to share their life stories, express hopes for younger generations and explain why they're leaving certain assets to certain family members. * * *

[E]xperts say that while videos can head off disputes, if not carefully executed, they also can backfire. * * *

A video may make sense if you are concerned that an heir will claim you weren't competent when you signed estate-planning documents or were pressured to distribute your assets a certain way, estate-planning attorneys say. Videos in which lucid individuals review their wills with their attorneys and answer questions that demonstrate their understanding of the documents and confirm they weren't coerced into any decisions can be useful in rebuffing challenges, they say. Such videos are typically filmed during a will-signing in an attorney's office and are kept by the attorney, along with the estate-planning documents. * * *

Attorneys generally caution against homemade videos, saying they are more likely to cause problems than those produced in consultation with an attorney. A video filmed by a beneficiary, for example, could give rise to conflict-of-interest questions. And, whether filmed professionally or not, a video in which a person looks ill or uneasy could raise questions about his or her cognitive abilities."

My personal view on this is that---overall---technology is a good thing and if it can be used to help rather than hinder in the course of estate planning, then it should be considered as part of the process.  After all, there is little doubt in the criminal context that many a disputed traffic stop, questioned search and seizure, and controversial police station interrogation could be averted if such proceedings were videotaped to ward off the "he said, she said" nature of these events.  Likewise, it seems that if an individual had a video camera and (vis-a-vis an objective, detached cameraman) proceeded to film a will or trust signing ceremony, held up each page of the document to the camera, interviewed or showed the witnesses and other participants, videotaped the actual signatures and notarizations, and otherwise allowed the individual to talk at length during the proceeding, that this could conceivably preclude many a disputed proceeding involving fraud, undue influence, and the like. 

New Book And Television Series Coming Out About Estate, Trust & Probate Battles

The estate, trust, and probate disputes and lawsuits that one reads about in the newspapers and which we commonly see in our law practice can seem like a television or movie drama.  Common threads running through these battles frequently include prominent characters in the community, tales of large sums of money flying around, allegations of complex conspiracies, questions regarding how a person died, disputes about the execution of certain documents, and claims of fraud and other wrongdoing.  In fact, these are probably the same human elements and reasons why I tend to find this area of law so interesting.  Perhaps it is also the reason why a new book and television series are coming out relating to these estate, trust and probate battles. 

Specifically, two Michigan lawyers, Andrew and Danielle Mayoras (who also author the Probate Lawyer Blog) have written Trial & Heirs:  Famous Fortune Fights which is described as a book containing "juicy details on famous cases."  While giving the reader "a front row seat in the courtroom," the authors also seek to "replay the scenarios and point out what went wrong, the winners and losers, and what you can learn from it."  The book is available for purchase at the above link.   

Also, the December 2, 2009 entry on the Wills, Trusts & Estates Prof Blog reports that a Canadian-based TV production company is shooting a new documentary series entitled "The Will," which will apparently reveal "the true life stories of complex and surprising disputes that have arisen surrounding a will, estate or trust."  The link summarizes how to participate in the series or submit a case that you think they should profile, and states that "they are looking for dramatic, unusual stories with numerous twists and turns, secrets and real emotion."  Most estate, trust and probate battles that we have handled seem to meet that criteria, but apparently one condition for being profiled in the TV series is that the cases must have reached a final decision or settlement in order to be considered.

Avoiding Estate, Trust & Probate Litigation

Since one of my areas of practice is estate, trust & probate litigation, it is obviously not in my economic self-interest to counsel against getting involved in this type of litigation in the first place.  However, first and foremost is a lawyer's duty to his or her client, which while sometimes involves filing or defending a lawsuit can also mean trying to avoid that lawsuit altogether.  After all, Abraham Lincoln once advised:  "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser---in fees, expenses and waste of time."  That is still generally solid advice, although sometimes the fight just cannot be avoided.

That said, U.S. News published a good little article over the Thanksgiving holiday entitled "8 Tips To Avoid Nasty Estate Surprises" which provides some good pointers for avoiding estate, trust & probate litigation.  In summary:

1.  Pick aa reputable, experienced lawyer who has not performed any work for any of the other beneficiaries.  Basically, you want an attorney who knows what they are doing in this area, who does not have a conflict of interest, and who will be representing your interests (only). 

2.  Pick an administrator who can get along with the family, maybe even a professional fiduciary (like a bank trust department) if no one else could practically fill this role.  This is a biggie---oftentimes when one beneficiary is chosen to act as executor or trustee it can cause consternation with respect to the other beneficiaries. 

3.  Talk about your intentions with family members before any will or trust is drafted, in order to preclude surprises and fights after death and making everyone aware of your plans and desires.  Open, honest communication can go a long way toward heading off battles over the family fortune. 

4.  Consider your state's laws and create trusts if necessary to bypass probate if it is particularly burdensome under applicable state law.  Again, our law firm engages in estate, trust & probate litigation---not estate planning---however we can refer you to some reputable attorneys in this area if needed.

5.  Update the will or trust often so that challenges are less likely.  One of the best ways to avoid litigation is to occasionally update your documents---under facts and circumstances (lots of objective, detached witnesses, etc.) demonstrating the absence of fraud and undue influence from others---so that it can be demonstrated you were polishing your estate and trust objectives up until the end your life.

6.  Be sure to title your assets properly so that the assets pass through or outside of probate as you originally intended.  Too many folks spend a lot of money creating fancy trusts and then never do the relatively simple work of actually transferring assets into the trust. 

7.  Think about including a no-contest clause tied to testamentary gifts of a degree sufficient to discourage legal disputes.  To help avoid post-death disputes it is worth possibly including a penalty clause that essentially poses a risk of losing their piece of the pie for any beneficiary who challenges the instrument  in question after your death. 

8.  Consider allowing some discretion with respect to distribution of assets so that beneficiaries can agree to a distribution that best meets their own needs and desires.  There is no one-size-fits-all strategy and of course none of us have a crystal ball, so sometimes providing for some flexibility is often a good practical solution. 

While not a fool-proof plan to avoid estate, trust & probate litigation, the foregoing reflects some good first steps to staying out of the courts with respect to the family fortune.  As we are in the heart of the Thanksgiving and Christmas seasons, I extend my best wishes to you with hopes for a fuss-free next few weeks.

Michael Jackson's Father Making Push For Allowance And Say-So In Deceased Son's Estate

At my house we just started giving allowances to our kids so long as they do certain chores around the house, and hopefully the experiment will teach them a number of lessons including personal responsibility, teamwork, the value of hard work, budgeting, saving, etc.  Each of our children will receive one dollar (per year of their age) per week, i.e., our 7 year old will receive $7 per week so long as he does his chores every day (and is docked a buck if he doesn't get them done).  I am hopeful that this will work, but the jury is still out as they have not yet caught on, for example, to the requisite bedmaking every morning.

That allowance, of course, is a mere pittance to the allowance that Michael Jackson's father is claiming from his son's estate.  I wrote about Michael's death a few weeks ago, and sure enough it appears that there are some post-funeral disputes with respect to who will benefit from the assets in his estate.  Specifically, an article today reveals that the gloved one's controversial father, Joe Jackson, recently filed a 60-page motion seeking a $15,000 monthly allowance to help cover his expenses.  Apparently Mr. Jackson's only income other than his son's assistance has been a $1,700 monthly Social Security check.  His alleged monthly expenses evidently include $1,200 for rent for his Las Vegas home (his wife of 50 years lives north of Los Angeles), $2,500 for eating out, $1,000 for entertainment, gifts and vacations; $2,000 for air travel; and $3,000 on hotels.  That actually does not sound too unreasonable considering Vegas prices, separate and distinct from the issue of whether Mr. Jackson should receive a dime to begin with . . .  

Anyway, a judge has ruled that Mr. Jackson can pursue his motion to receive a family allowance from the estate because he claimed his son had long been supporting him, but simultaneously ruled that he will not inherit any of his famous son's assets because he was not named in the will.  Mr. Jackson was deemed not to have standing to pursue his litigation, and therefore also will not be able to challenge the appointment of the executors chosen by the singer to handle the administration of his estate.  There is some indication from the article that an appeal may be forthcoming, but given the well-publicized strained relationship that Michael and Joe Jackson have had in the past it seems unlikely that an appellate court would overrule the trial judge's factual findings as to Michael's intent in drafting his will.

Legendary College Football Coach's Son Sues Stepmom Over Trust Obligations

We're in the heart of the 2009 college football season and the Arkansas Razorbacks are having a better year than last year under second-year Coach Bobby Petrino (thank goodness), although losing against the Florida Gators a couple of weeks ago still stings.  Transfer Ryan Mallett had a fantastic game yesterday against the South Carolina Gamecocks, and it is interesting that his former coach at Michigan, Rich Rodriguez, is having a fairly mediocre year in his second year leading the Wolverines. 

This serves as a nice little segue into my latest blog post about a story involving legendary Michigan Coach Bo Schembechler.  Before passing away in 2006, according to the university's website he coached the Wolverines for 21 seasons and had a winning percentage of .796 overall and .850 in the Big Ten Conference.  Although he was never able to win a national championship while at Michigan, he took the Wolverines to 17 bowl games and won 13 conference titles. 

Given his success as a college football coach, and given the money that head football coaches make at major Division I universities, there is no doubt that Coach Schembechler accumulated some substantial assets over the years.  It appears that there is now a family dispute with respect to those assets, as a recent article discusses how Schembechler's son has sued his stepmother (his father's third wife) in Ohio federal court over her alleged failure to provide quarterly statements about the trust under which he is evidently a beneficiary. 

This is one of the most common types of disputes in trust litigation, because one of the very reasons that people form trusts is because of confidentiality concerns, and yet at the same time the beneficiaries of that trust desire and to some extent are entitled to certain information about the trust (depending upon each state's laws).  It will be interesting to see whether this particular conflict evolves into a larger dispute over trust administration and assets or is resolved quickly once the accounting issue is straightened out.

Modern Recordkeeping Fraught With Potential For Abuse When Individuals Die

An interesting article on msnbc.com from a few days ago sheds light on how modern day estate planning probably needs to catch up with the practicalities of modern day life.  Specifically, the article's author discusses how, years ago, when an individual died the survivors typically conducted a search of the house, papers, safety deposit box, etc. in order to determine and collect information and records regarding the assets and liabilities of the estate.  However, these days much of that type of information is not stored in "hard copy" form but rather on a computer, typically protected by a password and known only to the person who just passed away.  One never knows when they will breathe their last breath, of course, and often the decedent never shares their password with another family member, friend, or trusted legal or financial advisor.

As a lawyer who does not engage in estate planning but instead represents clients in estate, trust and probate litigation matters, I believe that the increasing use of digital record keeping is fraught with potential abuse.  Specifically, while most fiduciaries are honest and trustworthy, I have worked on many lawsuits in which shady estate and trust administrators are alleged to have destroyed, concealed, or otherwise failed to produce documents to beneficiaries.  When such records are never even printed out but rather are kept only in digital form, the beneficiaries' discovery of such matters can seemingly be made even more difficult if not impossible.  After all, in some ways it can be easier to manipulate digital data than a hard copy.  So, while computers can no doubt increase the efficiency and accuracy of diligent decedents and honest estate and trust administrators, it basically comes down (as it always does) to a universal truth---people who are inclined to cheat can probably find a way to do it.   

Questions About Notarized Document Result In Reversal Of Trial Court's Ruling

More times than I can count since I started practicing law, I have been involved in lawsuits in which the authenticity of a signature on a document was a primary disputed issue in the case.  Whether our law firm was representing the plaintiff who was suspicious of a signed document, or instead representing the defendant who was insisting upon the validity of a signed document, many of these situations entailed questions over how and/or when a notary public witnessed a person's signature.  The types of documents involved (e.g., wills, trusts, deeds, contracts, etc.) is as varied as the types of alleged misconduct (e.g., never actually witnessing the signature, backdating a document, failing to properly identify a signer, willfully stating as true a material fact known to be false, etc.).  Make no mistake---there are laws governing notaries and their actions, but for some reason often many notaries can get somewhat loosey-goosey regarding their obligation to strictly follow the letter of the law.

In any event, on October 22, 2009, the Arkansas Supreme Court intervened in such a dispute and reversed a trial court's ruling that a power of attorney transferring real property was valid.  In Jones v. Owen, 2009 Ark. 505, an appeal from Sebastian County Circuit Court, the Court considered a case involving disputed land, a father's will, and that father's power of attorney.  You can guess what happened, of course . . . the will said that the land went to X while the power of attorney ultimately resulted in the land being  conveyed to Y.  Litigation ensued and the trial court ruled that the power of attorney was valid.

In overturning that decision, the Arkansas Supreme Court concluded that the power of attorney was not valid and did not authorize the property to be transferred.  Specifically, in this instance the power of attorney was apparently acknowledged by a notary public prior to the decedent ever signing it.  That is, the notary public had signed the acknowledgment and left the date blank, which was later filled in by the attorney handling the transaction.  The Court ruled that in some circumstances a signature could be notarized without the notary public physically being there to witness the signature (e.g., after signing a grantor can appear before a notary and acknowledge his signature, a grantor can acknowledge his signature via a telephone call with the notary, etc.).  However, if the grantor never appears to acknowledge his signature, but the notary falsely certifies that the grantor did appear, then the acknowledgement will be deemed void. 

Moral of the story:  Notaries have a tremendous amount of power, as they add a significant measure of validity to the execution of documents which record major financial transactions and carry out a person's final wishes regarding their property.  Those powers should not be exercised carelessly, much less fraudulently.  Jones v. Owen appears to be a clear message from the Court that it will require notaries to strictly comply with their  legal duties, and that the Court will not hesitate to set aside transactions when warranted under the facts and circumstances.

Children Of Dr. Martin Luther King, Jr. Settle Dispute Over Father's Estate

Anyone who knows me is aware of my admiration for Dr. Martin Luther King, Jr. as a speaker, preacher, writer, community activist, and proponent of peace and nonviolence.  Many do not appreciate the fact that he was much bigger than a mere advocate for racial equality, but rather was a warrior for the larger causes of social and economic justice.  In light of the controversies over his writings and his personal life, he was undoubtedly a flawed figure (aren't we all?) but his legacy and contributions to society are undeniable. 

This is precisely why the battle over Dr. King's estate in which his children have recently been involved has been such a tragedy and---I dare say---an embarrassment.  I cannot help but think that, with so far to go in terms ofachieving just societies and just economies, if he were alive today Dr. King would be sick to know that his children are not so much fighting to carry on his legacy as they are fighting with each other about the assets and property rights in Dr. King's estate. 

That is why it was so refreshing to see that a few days ago the King children evidently decided to resolve their differences and settle their pending litigation with each other.  Specifically, Dexter King's brother and sister sued him alleging that he engaged in improprieties while he was acting as head of Dr. King's estate, and the parties were on the verge of a civil jury trial which would no doubt have aired the King family's finances and any dirty laundry.  Estate, trust and probate battles often unfortunately result in families being completely torn apart, but it appears (from the article at least) that the King siblings are hopeful that they can forgive and reconcile their differences.  This is the exception rather than the rule in such circumstances, but is a development of which Dr. King would no doubt be proud. 

Newly-Discovered Assets In Old Estate Result In New Litigation

A recent decision from the Arkansas Court of Appeals in Ellingsen v. King, 2009 Ark. 655 (October 7, 2009) illustrates how some long-forgotten but newly-discovered property can often send family members and creditors scrambling for their piece of the pie.  This interesting case involved Mr. McAlexander, who died in 1988 a resident of Shelby County, Tennessee.  An domiciliary probate estate was opened in Tennessee, and an ancillary probate estate was opened in Arkansas.  Mr. McAlexander's creditors did not file a claim against the ancillary estate in Arkansas, and its known assets (a fractional mineral interest to 85 acres of land in Conway County, Arkansas) were transferred to the Tennessee estate, such that the Arkansas estate closed in 1990.  In 1991, a Tennessee probate court concluded that the estate was insolvent and approved a plan of distribution to the estate's three creditors (the United States of America [60%], a bank [20%], and Mr. McAlexander's widow [20%]), before the estate was closed in 1996. 

A decade went by and in 1996 it was discovered that Mr. McAlexander had actually also held an interest in the mineral rights to approximately 4800 additional acres of land in Conway County, Arkansas, which everyone in Arkansas now knows is in the heart of the booming Fayetteville Shale natural gas play.  The ancillary estate in Arkansas was reopened but none of the creditors filed a claim.  In 2007 the Arkansas trial court authorized the executor of the estate to execute an oil and gas lease that included a cash bonus in excess of $1,000,000.00. 

At that point, of course, it appears that people came out of the woodwork to claim the money.  Specifically, the executor asked the trial court to determine the rights and interests of the creditors who had filed claims agains the Tennessee estate.  The trial court granted summary judgment in favor of the creditors, with the end result being that Mr. McAlexander's five daughters receiving nothing under the trial court's order.  On appeal, the Arkansas Court of Appeals noted that while there was no evidence to indicate that the creditors properly presented their claims pursuant to Arkansas law, under Arkansas law when an estate is deemed insolvent it is still possible in some circumstances for such creditors to be paid a portion of their claim.  While the Tennessee court had long ago held that the estate was insolvent, that finding was made before the assets at issue were discovered such that the Arkansas Court of Appeals reversed the trial court's summary judgment for factual findings as to the solvency of the estate in light of the newly-discovered assets.

I cannot help but think that in the coming years we will see many more stories like this, as people dust off old deeds and other documents only to discover that they possess mineral rights in North-Central Arkansas land that they never dreamed would become a profit-producing property.

Statute Of Limitations For Breach Of Trust Suits Against Trustees

A couple of the most frequent questions in estate, trust, and probate litigation are:

(from trust beneficiaries)  "How long do I have to sue a trustee for breach of trust?", and

(from trustees or potential trustees)  "How long must I be concerned about potentially being sued for an alleged breach of trust?"

The Arkansas Trust Code (at Ark. Code Ann. Sec. 28-73-1005) addresses this issue and generally provides for two possible limitations of action:  (1) a shorter period when the trustee discloses the existence of a claim; and (2) a longer period if the trustee does not make a disclosure.

Basically, if the trustee discloses sufficient information to put the beneficiary on notice that they may have a potential claim, the beneficiary has one year after the date of the disclosure in which to bring suit.  Absent such a disclosure, the beneficiary has five years after the first to occur of: 

(1) the removal, resignation, or death of the trustee;

(2) the termination of the beneficiary's interest; or

(3) the termination of the trust

 in which to commence a claim against the trustee for the breach.

One question that does not appear answered by this statute (or any cases which so far have interpreted the statute) is whether the statute of limitation for breach of trust can be "tolled," or suspended, in situations where the trustee has engaged in fraudulent concealment.  If there has been concealment, Arkansas courts have generally held in other contexts that the statute of limitations does not begin to run until the person having the cause of action discovers the fraud or should have discovered it by the exercise of reasonable diligence. 

Eventually the Arkansas Court of Appeals or Arkansas Supreme Court will, once and for all, specifically decide whether or not the doctrine of fraudulent concealment also applies to the statute of limitations set forth in the Arkansas Trust Code.   Perhaps in doing so they can shed light on what statute of limitations, if any, applies to breaches of trust that are not governed by the Arkansas Trust Code (which only came into effect on September 1, 2005). 

Last Will And Testament Of Entertainer Michael Jackson

Michael Jackson's recent death shocked the world, notwithstanding his controversial and mysterious past.  The famous singer will not soon be forgotten, however, if nothing else because of the money, property, and incredible fortune that he left behind to his heirs.  Word is that he had incurred substantial debt at the time of his death, but royalties alone from his catalogue of music will surely reap many millions of dollars in profits long into the future.  Only time will tell whether any major fights erupt out of the settling of his estate (especially since Michael's father and siblings were apparently not named as beneficiaries), but in case you were curious The Smoking Gun has apparently obtained a copy of Michael's Last Will And Testament.

No Breach Of Fiduciary Duty In Unique Trust Lawsuit

The Arkansas Court of Appeals recently ruled in an interesting case that a trustee's encumbrance of trust property did not, under the specific circumstances involved in the dispute, constitute a violation of the trustee's fiduciary duties.  Ordinarily such actions are looked down upon, but this case is an instance in which the unique facts involved apparently warranted a slight departure from the general rule.  

Specifically, on September 9, 2009, the Arkansas Court of Appeals issued its decision in the case of Hanna v. Hanna, #CA08-1256, which was an appeal from Washington County Circuit Court.  The ex-wife had sued her ex-husband for self-dealing, breach of fiduciary duty, and mismanagement of assets in their children's trusts.  The ex-wife had received a $16 million divorce settlement, and the ex-husbanddirected his chief financial officer to form a plan to gather the money (the couple had owned a successful candle company and several other entities) . 

Long story short, the ex-husband obtained loans to raise the funds and also used company assets as collateral for loans to company officers totaling $3 million.  The ex-wife brought the above-described claims against the ex-husband, and he defended arguing that he had not known it was wrong and that he had done it in the best interest of the children.  In doing so the ex-husband offered evidence that it was to the company's advantage that he settle, which he could only do by pledging company assets, and that the bank would not have funded the loan absent using company assets as collateral. 

Ultimately the trial court declined to award damages to the trusts or set aside the loan transactions, but did order the ex-husband to remove company assets as collateral for the officers' loans totaling $3 million.  The Arkansas Court of Appeals affirmed the trial court's decision, holding that this was not a situation in which a trustee was using trust assets solely to pay for his divorce settlement, nor was it an instance in which the trustee's actions failed to benefit the trusts.  The Court instead ruled that the parties to the lawsuit, the companies, and the trusts were all intertwined, and that the ex-husband's actions to carry out the divorce settlement in effect protected them all.  The Court did make clear, however, that its ruling was "confined to the particular circumstances of this case and should not be read to permit a trustee to encumber trust property in the absence of extraordinary circumstances."

General Duties Of A Trustee Under Arkansas Law

Clients and potential clients---whether a beneficiary of a trust or perhaps even the trustee of a trust---often ask about the duties of a trustee under Arkansas law.  This is a very broad question and cannot be done justice in a single Blog post.  

However, in general (unless the trust specifically overrides the general requirement) a trustee is charged with:

---A Duty To Obey The Grantor (while the trust is still revocable the duties of the trustee are owed to the grantor, and the trustee may generally follow a direction of the grantor even if it is still contrary to the trust's terms)

---A Duty Of Administration (to administer the trust in good faith, according to the trust's terms and purposes and the interests of the beneficiaries);

---A Duty Of Loyalty (perhaps the most important duty, which includes putting the interests of the beneficiaries above the interest of the trustee or any third party);

---A Duty Of Impartiality (whenever the trust has two or more beneficiaries, to act with impartiality with regard to the investment, management, and distribution of the trust property);

---A Duty Of Prudent Administration (regardless of whether the trustee receives compensation, to administer the trust as a prudent person would in light of the purposes, terms, requirements, and other circumstances of the trust);

---A Duty To Control And Care For Trust Property (to collect and insure trust property, pay debts and hire caretakers if necessary, keep adequate records, keep trust property separate from the trustee's own property, enforce claims of the trust, defend claims against the trust, not allow beneficiaries to use trust property unless otherwise allowed, etc.);

---A Duty To Report (to provide information about the trust in general, the trustee, the trust's existence, the trustee's compensation, the assets and liabilities, etc.; keep in mind that this duty may only come into effect once the grantor of a revocable trust is deceased or deemed incompetent);

---A Duty Of Confidentiality (trustees have been charged with the responsibility to keep trust matters, including the terms of the trust, the nature of the trust's assets, and the identity of beneficiaries, confidential unless waived by the terms of the trust or required by law);

---A Duty To Administer The Trust In An Appropriate Place (while the trustee can move a trust's primary place of administration, the trustee is under a continuing duty to administer the trust in a location that is appropriate in light of the trust's purposes, administration, and interests of the beneficiaries); and

---A Duty To Use Reasonable Care To Prevent Cotrustees From Breaching The Trust, And To Obtain Redress If A Breach Is Committed (this basically means just what it says---if the first trustee has a cotrustee [second trustee] and that second trustee is violating their fiduciary duties, the first trustee has an obligation to take reasonable action to prevent further harm).

A trustee's duties have been stated in different ways, but the foregoing is a fair summary of the trustee's primary obligations under Arkansas law.  Again, the terms of the trust itself can override some of these duties, which is why it is extremely important to read and understand the actual language of the trust instrument.  All of these issues will be examined in more depth in later Blog posts.

***Welcome To The Arkansas Estate, Trust & Probate Litigation Blog, a.k.a. "Wealth Wars"

Welcome to the Arkansas Estate, Trust & Probate Litigation Blog.  My name is Matt House and I am a lawyer with James, Fink & House, P.A. in Little Rock, Arkansas.  I intend to regularly update this Blog with commentary, analysis and general items of interest relating to estate litigation, trust litigation, and probate litigation, especially within the State of Arkansas.  Perhaps I should get out of the office more or take on a new hobby, but I am fascinated by this area of law, enjoy the challenges and issues associated with these civil lawsuits, and have simply decided to write about the topic from time to time.  I hope that you find this Blog interesting and helpful.  

With the Baby Boomers starting to retire in greater numbers, Arkansas's older population demographic, and the slow but steadily increasing concentration of wealth in the United States, we anticipate a substantial increase in "wars over wealth" in the coming years.  Indeed, the largest intergenerational transfer of wealth in human history has already begun and will continue for many years.*   These wealth wars will most commonly take the form of estate and trust conflicts, inheritance battles, will contests, accounting actions, claims by or against fiduciaries, proceedings requiring the interpretation of wills and trusts, fights over trust expenditures and money management, disputes over missing assets and property ownership, accusations of self-dealing, family business litigation and "corporate divorces," claims of fraud and undue influence, abuse of elders and questions of competency, and actions to determine the rights of beneficiaries and creditors. 

Feel free to contact me with respect to these legal issues at 501-372-6555 or mhouse@jamesandhouse.com.  Thanks for stopping by, and please visit often.

Matt House

*One of the most cited figures is a low-growth minimum estimate of $41 trillion (in 1998 dollars) in intergenerational transfers during the 55-year period from 1998 through 2052.  See John J. Havens and Paul G. Schervish, Why The $41 Trillion Wealth Transfer Estimate Is Still Valid:  A Review Of Challenges And Questions, Boston College Social Welfare Research Institute, January 6, 2003 Newsletter (also published in The Journal of Gift Planning, Vol. 7, No. 1, January 2003, pp. 11-15, 47-50) (internal citation omitted). 

DISCLAIMER:  This Blog is for informational purposes only and may not be relied upon for legal advice.  Absent a written and signed representation agreement, Mr. House and his law firm are not your attorney and neither this Blog, nor any telephone call, letter, fax, or e-mail inquiry, creates an attorney-client relationship.