plans governed by ERISA must be established and maintained under written
agreements authorizing fiduciaries to control and manage the plan's operation
and administration. ERISA generally considers an entity a fiduciary to the
extent that it holds discretionary authority or responsibility...
to a fiduciary accounting are sustained and the court imposes a surcharge or
denies commissions or grants removal, it may also charge the legal fees of the
fiduciary against the fiduciary individually for their misconduct. In other circumstances, the court may also
impose the objectant's...
Ann Crawford McClure+ and John F. Nichols, Sr.
Eighth Court of Appeals, El Paso, Texas; B.F.A., magna cum laude, Texas Christian
University, 1975; J.D., University of Houston Law Center, 1979; Board Certified
by the Texas Board of Legal Specialization, Family Law (1984) and Civil
Self-dealing is simply not tolerated
in the relationship between a fiduciary and those whose interests he or she is
to protect. In attempting to address the
problem of self-dealing, a bright-line prohibition has evolved in trust law so
that where self-dealing is found, the Court will make "no...
By David W. Tate
Estate of Roger Kampen (California Court of Appeal, First Appellate
District, Case Nos. A129849 and A130313, November 14, 2011, Pub. Order
December 9, 2011) [ enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law ].
Return of Commissions
By Hon. C. Raymond Radigan, Ruskin Moscou Faltischek, P.C.
Co-fiduciaries sought the removal
of another co-fiduciary for the misuse of estate funds. The respondent defaulted and therefore the
allegations set forth in the petition were deemed true pursuant to SCPA 509 and...
A recent North Carolina Court of Appeals decision affirmed the Superior Court verdict that an agent under a power of attorney did not breach his fiduciary duty to his aunt, Doris King or unjustly enrich himself at her expense. Albert v. Cowart, et al .
Even though the defendants prevailed in this case...
By Jonathan A. Kenter and Gail H. Cutler
In the latest of a series of high-profile class action suits against large 401(k) plans, ABB, Inc., a North Carolina power generation products manufacturer, and its 401(k) plan committees, were held jointly and severally liable, for a record $37 million in damages...
Pursuant to NY Surrogates
Court Procedure Act (SCPA) 707 , letters may issue to a person authorized by law
to be a fiduciary, except in the circumstances specifically enumerated in the
statute. The allegation that a petitioner is "incompetent to execute the duties
of his office by reason of...
By Brian M. Pinheiro and Kurt R. Anderson
Employers that sponsor section 401(k), 403(b), and other types of retirement plans rely on third parties to conduct the day-to-day administrative functions of these plans. Investment managers, record-keepers, consultants, and other third parties all provide...
Every Sarasota and Manatee County Florida resident leaving property and assets to their heirs at death, via a trust, must consider who will run the trust after they have passed away. The chosen fiduciary will be responsible for managing the assets the trust owns and making distributions to your loved...
By Patricia A. Smith , Brian M. Pinheiro , and Erin K. Clarke
The U.S. Supreme Court recently refused to grant certiorari for two 2011 Second Circuit stock drop decisions that had adopted the " Moench presumption" for determining whether fiduciaries imprudently invested assets in employer...
By Diane L. Mutolo J.D. LL.M.
An estate fiduciary may be held personally liable for the estate's unpaid taxes. IRC § 6901 provides that the government may collect a fiduciary's liability under the Federal Priority Statute ( 31 U.S.C. § 3713 ) for an unpaid claim of the Government...
What's fair is fair - or at least that's the concept behind the pro tanto rule wherein a surcharge against a fiduciary is limited to the interest of the objecting party and not the other beneficiaries who stood by and failed to act in their own interest. In the absence of an objection, the account...
By: John G. Farinacci
Estate disputes have been called "divorces of siblings." Although sibling disputes over their parent's estates are common, there are many other relationships that result in estate disputes as well. However, the point of the saying is well taken in that complex family...