Estate and Elder Law

Recent Posts

Troutman Sanders LLP: The Next Frontier in Fiduciary Oversight Litigation?
Posted on 10 May 2012 by Troutman Sanders

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... Read More

Ballard Spahr LLP: Best Practices for Plan Fiduciaries - The New 408(b)(2) Service Provider Disclosure Regulation
Posted on 13 Jun 2012 by Ballard Spahr LLP

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... Read More

New California Case – Damages Recoverable Against an Estate Executor for Failure to Timely Distribute Assets Following an Order of Distribution
Posted on 14 Dec 2011 by Dave Tate

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... Read More

Contested Accountings and Attorneys Fees
Posted on 25 Aug 2011 by Peter K. Kelly

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... Read More

Ballard Spahr LLP: Best Practices for Plan Fiduciaries - The New 408(b)(2) Service Provider Disclosure Regulation
Posted on 13 Jun 2012 by Ballard Spahr LLP

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... Read More

NC POA Case Shows It's Better to Plan in Advance
Posted on 1 May 2012 by Gregory Herman-Giddens

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... Read More

No Further Inquiry: The Self-Dealing Fiduciary
Posted on 16 Nov 2011 by Jennifer Hillman

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... Read More

Dishonesty as a Grounds for Ineligibility as a Fiduciary
Posted on 15 May 2012 by Jennifer Hillman

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... Read More

NC POA Case Shows It's Better to Plan in Advance
Posted on 1 May 2012 by Gregory Herman-Giddens

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... Read More

Fraud, Fiduciaries, and Family Law
Posted on 7 Sep 2011 by LexisNexis Estate and Elder Law Community Staff

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... Read More

Co-Fiduciary Required to Repay Commissions by NY Court
Posted on 31 Jan 2012 by Hon. C. Raymond Radigan

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... Read More

Ballard Spahr LLP: Supreme Court Denies Review of Second Circuit Cases Adopting Moench Presumption for Fiduciaries of ERISA-Governed Plans
Posted on 6 Nov 2012 by Ballard Spahr LLP

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... Read More

Troutman Sanders LLP: The Next Frontier in Fiduciary Oversight Litigation?
Posted on 10 May 2012 by Troutman Sanders

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... Read More

Zanglein and Stabile on Rendering Retirement Plan Investment Advice for a Fee
Posted on 6 Jun 2011 by Jayne Zanglein and Susan J. Stabile

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... Read More

Hostility as a Basis to Deny Fiduciary Appointment
Posted on 1 Mar 2013 by John G. Farinacci

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... Read More