One of the most fundamental duties of a fiduciary is the duty of loyalty. That is, every fiduciary must administer the estate or trust subject to his or her stewardship solely in the interests of the beneficiaries. If a fiduciary engages in self-dealing, that duty is breached. In Matter of Smith, the Surrogate’s Court, Albany County, recently addressed the liability attendant to fiduciary self-dealing . Ilene Cooper discusses the decision in our latest post.
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Wrongdoer Deprived of Elective Share
Pursuant to the provisions of EPTL 5-1.1-A, every surviving spouse of a domiciliary decedent is entitled to a statutory right of election. While a surviving spouse may be disqualified from an elective share under any one of the circumstances enumerated in EPTL 5-1.2, the Surrogate’s and Appellate Courts have crafted a further ground for forfeiture when equity so requires. Such was the result in Matter of Berk, recently decided by the Surrogate’s Court, Kings County. Ilene Cooper discusses the decision in our latest entry.
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Releases: End of the Road or Just a New Beginning?
The fiduciary who thinks a receipt and release is the answer to all future claims for an accounting and liability may have a surprise in store. Over the past several months, Surrogates have explored the issue of receipts and releases, and have provided insight into just how far they will go to “save the day.” The New York County Surrogate’s Court’s recent decision in Matter of Ingraham is a case in point. Ilene Cooper discusses the decision in our latest post.
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On Its Own Motion
While most decisions rendered by the Surrogate’s Court result from an affirmative request for relief, occasionally the court will address an issue on its own motion when justice or the exercise of its inherent or statutory power requires. In our latest post, Ilene Cooper examines two recent opinions wherein the Surrogate’s Court again acted on its own initiative to achieve what it considered the proper result.
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Fiduciary Imprudence: When the Sale of an Asset Results in a Surcharge
Although one of the many duties of an executor is to marshal and appraise estate assets, and, depending on the terms of the governing instrument, liquidate them for purposes of distribution, the fulfillment of these duties may, at times, result in fiduciary liability. That was the case Matter of Billmyer, a recent decision emanating from the Second Department. Ilene Cooper discusses the decision in our latest entry.
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Lessons to be Learned From the Power of Attorney
Powers of attorney and trust instruments have each been the subject of many an estate plan. They each have also been the subject of multiple estate litigations. In combination, the two have served as fodder for controversies surrounding the agent’s authority over the trust and its terms. Two decisions — Matter of Goetz and Matter of Perosi v. LiGreci — have addressed the issue, albeit with different results. Both decisions provide valuable instruction for drafters and litigators. Ilene Cooper discusses these cases in our latest entry.
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Recent Amendment Creates Further Exception to Attorney-Client Privilege
An amendment to CPLR 4503(b) was recently signed into law, creating another exception to the attorney-client privilege. Ilene Cooper discusses the new legislation in our latest entry.
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Proof of Wrongdoing and the Right of Election
In 2010, the Appellate Division, Second Department, made it clear in two decisions — Matter of Berk and Campbell v. Thomas — that principles of equity grounded in rules of forfeiture can adversely impact a surviving spouse’s entitlement to an elective share. The Second Department recently addressed the Berk matter again, specifically with respect to the issues to be determined and burdens of proof to be imposed at trial. Ilene Cooper discusses the decision in our latest entry.
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The Essentials of a Discovery Proceeding
This month’s blog post will address a recent decision by the Appellate Division, First Department, entered in In re Perelman, that helps reiterate and define the parameters of discovery proceedings. The case is interesting not only for its facts and the issues they presented, but for its litigants: Ronald Perelman, of Revlon and corporate raider
Attorney’s Fees: Not for the Taking
While attorney’s fees incurred by the fiduciary are generally reimburseable from an estate as a reasonable and necessary expense of administration, this is not the rule with respect to the legal fees incurred by a beneficiary. The different standard that applies was recently examined by Surrogate Mella in In re Frey, NYLJ, July 25, 2013,