Professional Malpractice Wills, Trusts, & Estate Planning

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The fiduciary exception to the attorney-client privilege: A recent development

In a suit by the beneficiary against the trustee, is the trustee entitled to assert the attorney-client privilege against the beneficiary, or is there a fiduciary exception to the attorney-client privilege? As to...more

The enforceability of a trust accounting clause’s failure-to-object provision (the non-judicial settlement of trustees’ accounts)

It is common for the accounting clause of an inter vivos trust instrument to contain a provision along the lines of the following: “The written approval of such an account by the person or persons thus entitled to such...more

Illinois Supreme Court Holds Wrongful Death Attorney Owes Duty to Decedent's Beneficiaries

A unanimous Illinois Supreme Court added a new complication for plaintiffs’ counsel handling wrongful death cases late last week, unanimously holding in In re Estate of Perry C. Powell that an attorney representing the...more

The confusion being engendered by the Uniform Trust Code’s default trust-revocation methodologies (§ 602(c)).

In the pre-Uniform Trust Code UTC), unless the terms of a revocable inter vivos trust provided otherwise, the trust could not have been revoked by the settlor’s will. A will speaks at the time of the testator’s death, an...more

Argument Report: Illinois Supreme Court Likely to Find Wrongful Death Lawyer Owes Duty to Next of Kin

Based upon the especially heavy questioning directed at the appellant during the recent oral argument in Estate of Powell v. John C. Wunsch, P.C., the Illinois Supreme Court seems to be contemplating holding that counsel who...more

The constructive general inter vivos power of appointment: A trap for the unwary trustee and his counsel

The constructive general inter vivos power of appointment is the product of the marriage of power of appointment doctrine and creditors’ rights doctrine. It is a topic that is taken up in §4.1.3 of Loring and Rounds: A...more

The Uniform Trust Code’s stealth attack on the Trustee’s time-honored duty to defend his trust

One of the critical duties of a trustee traditionally has been to defend his trust against internal attacks. By that I mean to defend the trust against those who, in contravention of the settlor’s intentions as expressed in...more

A valid Massachusetts testamentary trust may now arise under a will that was not fully executed (signed by the will witnesses)...

Massachusetts has broken new ground in allowing a will to be fully executed (signed by the will witnesses) after the death of the testator, with no time period specified. In the upcoming 2014 edition of Loring and Rounds: A...more

Old Doctrine Misunderstood, New Doctrine Misconceived: Deconstructing the Newly-Minted Restatement (Third) of Property’s Power of...

Old Doctrine Misunderstood, New Doctrine Misconceived: Deconstructing the Newly-Minted Restatement (Third) of Property’s Power of Appointment Sections In was in the course of preparing the 2013 edition of Loring and...more

The Trust Being a Multi-Party Relationship, Whom Legal Counsel Represents Can Get Complicated

The trust being a multi-party relationship, it is not always that easy to discern at any given time whom legal counsel is representing, or should be representing, in matters relating to the trust’s creation and...more

Illinois Supreme Court to Hear Five Civil Cases In May

On Tuesday, the Illinois Supreme Court announced its oral argument calendar for the May term, and it includes arguments in five civil cases. The cases, with the questions presented in each, are...more

Is Honesty Always the Best Policy? Illinois Appellate Court Holds Attorney’s Ethical Obligations Trump Professional Liability...

In a case of first impression, the Illinois Appellate Court considered whether a professional liability insurer can deny a defense to its insured, an attorney who admits he erred in providing legal services. Ill. State Bar...more

Trial lawyers beware of the in terrorem trust clause: A nasty trap that can keep on springing.

An “in terrorem” or “no-contest” clause in a trust instrument provides for the forfeiture or reduction of the equitable property interest of a beneficiary who contests the arrangement. In a recent New Hampshire case, Shelton,...more

IRS 6050W: Implications for Attorneys and Others Who Accept Credit Cards

This is a good analysis of the implications of IRS 6050W for attorneys and others who accept credit card payments; kudos to Lawpay.com for the analysis!...more

Does a trust beneficiary incur any personal liability?

As a general rule, one assumes no personal liability when one becomes a trust beneficiary. There are some exceptions, however. Charles E. Rounds, Jr. explains in Section 5.6 of Loring and Rounds: A Trustee’s Handbook (2012)....more

Oliveira v. Kiesler: Attorneys and Non-Attorneys May Be Joint Tortfeasors For Purposes of Offsetting Judgment After Good Faith...

The California Court of Appeal (Fourth Appellate District, Division 3) recently held that an attorney can be a joint tortfeasor with his or her client for purposes of California Code of Civil Procedure section 877. The...more

Shifren v. Spiro: Legal Malpractice Statute of Limitations Does Not Begin to Run Until Judgment or Settlement of Underlying Case...

The California Court of Appeal (Second Appellate District, Division 3) reversed a trial court’s grant of summary judgment in favor of a defendant law firm after concluding that the action was not time-barred by the running of...more

Mediation and Arbitration have their limitations when it comes to trust disputes.

Unless the fiduciary issues and the representation issues in a trust dispute are properly sorted out in advance, there is a very real risk that an ill-considered rush to mediate or arbitrate will prove an expensive and...more

Could the Myriad Codifications of Aspects of the Law of Trusts Culminating with the Uniform Trust Code (2000) Be Doing More Harm...

Though the trust is a judge-made creature of equity, the last eighty years have seen numerous rounds of uniform legislation codifying various aspects of the law of trusts, beginning with the Uniform Principal and Income Act...more

The Expenditure of Attorney Fees to Remove a Conservator Does Not, on its Own, Constitute Financial Elder Abuse

The California Court of Appeal (Second Appellate District, Division Seven), in an unpublished decision, recently upheld a trial court order sustaining a demurrer to a cause of action for financial elder abuse. The complaint...more

LAW SCHOOLS NO LONGER ADEQUATELY EQUIP THEIR STUDENTS TO THINK LIKE LAWYERS: THE UNINTENDED CONSEQUENCES OF DECONTEXTUALIZING...

The process of paralegalizing the American legal academy is now complete. It was inevitable. A course in Contracts does not a complete lawyer make. The curricular marginalization of two of the other critical enforceable...more

Asset Protection and The Title To Your Home - Common Mistakes

A good part of the American dream and the largest single asset many people own is their home. Whether shelter or showpiece, the sanctuary it provides and the investment we make in our homes is among the largest in the...more

Asset Protection FOR CPAs

One pressing area in which clients are increasingly seeking feedback from their accounting and financial advisory team is Asset Protection. Part of that stewardship is making sure that the growth and savings you are...more

Asset Protection Basics For Accountants

One pressing area in which clients are increasingly seeking feedback from their accounting and financial advisory team is Asset Protection. Part of that stewardship is making sure that the growth and savings you are...more

In-House Law Clinics versus Doctrinal Instruction

It is the conventional wisdom among today’s academics that law students are better off participating in clinical programs administered in-house by the law schools than taking traditional courses in agency and trust law....more

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