1. Holding the Trustee Accountable: The importance of the fiduciary trust accounting.
A trustee is under a strict fiduciary duty to keep and render a complete and accurate record.
A trustee is a person who has broad discretion with very little oversight over someone else’s assets. Practically the only time a beneficiary can review what the trustee has done and have an opportunity to challenge those actions is when the trustee provides an accounting to the beneficiary. As such, one of the many duties a trustee has is the duty to inform and account. This fiduciary duty is critically important to ensure that the trustee is properly discharging his or her fiduciary duties in managing the affairs of the trust. Click here to continue reading
2. Pitfalls of Joint Accounts, by Jay Fleece
A common problem today in estate planning is the unintended consequences of joint bank accounts. Recently, a client called and told me that while he was at his bank, the account representative suggested that he should put his niece on his account so that she could pay his bills if something happened to him.
Luckily, this client was smart enough to call his attorney to find out if that was a good idea. I told him that he had already signed a durable power of attorney and that document would give his niece full power and authority to deal with his bank account, plus much more, if something happened to him. I then went on to explain what would have happened had he followed the advice of the young account representative.
I told him, based upon my experiences … Click here to continue reading
3. How to Assist/Train Your Attorney in Probate and Guardianship
This document is a presentation to the Paralegal Association of Florida, Pinellas County Chapter by Hamden Baskin and Jay Fleece, on May 1, 2010. Click here to go to the presentation document
4. Pitfalls of Estate Planning and How to Avoid Litigation.
Common issues to be aware of:
- Failure to properly identify all non-probate or non-trust property to insure proper designation of beneficiaries
- Failure to advise the client of the significance of placing another person's name on bank accounts
- Failure to make sure less restrictive alternatives are in place to avoid a guardianship
- Failure to properly oversee document review and execution
- Failure to identify the proper or best suited successor trustee
- For gift annuities "putting all your eggs in one basket"
Elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by that breach. See: Gracey v. Eaker, 837 So. 2d 348 (Fla. 2002) .
What is a fiduciary duty? Click here to continue reading