Zanglein and Stabile on Rendering Retirement Plan Investment Advice for a Fee

Retirement 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...

Contested Accountings and Attorneys Fees

When objections 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...

Fraud, Fiduciaries, and Family Law

By Justice 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 Appellate...

No Further Inquiry: The Self-Dealing Fiduciary

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...

New California Case – Damages Recoverable Against an Estate Executor for Failure to Timely Distribute Assets Following an Order of Distribution

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 ]. The...

Co-Fiduciary Required to Repay Commissions by NY Court

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...

NC POA Case Shows It's Better to Plan in Advance

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...

Troutman Sanders LLP: The Next Frontier in Fiduciary Oversight Litigation?

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...

Dishonesty as a Grounds for Ineligibility as a Fiduciary

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...

Ballard Spahr LLP: Best Practices for Plan Fiduciaries - The New 408(b)(2) Service Provider Disclosure Regulation

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...

Naming a Trustee Is a Key Florida Estate Planning Decision

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...

Ballard Spahr LLP: Supreme Court Denies Review of Second Circuit Cases Adopting Moench Presumption for Fiduciaries of ERISA-Governed Plans

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...

Personal Liability of a Fiduciary under the Federal Priority Statute for Unpaid Federal Taxes of an Estate and Recent U.S. District Court Decisions

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...

To The Victor Goes The Spoils: A Review of the Pro Tanto Rule

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...

Hostility as a Basis to Deny Fiduciary Appointment

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...