Charles E. Rounds, Jr. – Suffolk University Law School

Has the non-commercial trust relationship for the most part managed to avoid the cross hairs of the Financial Crimes Enforcement Network (FinCEN)?

FinCEN issued (05/11/2016) final rules under the Bank Secrecy Act “to clarify and strengthen customer due diligence requirements” for: Banks; brokers or dealers in securities; mutual funds; and futures commission merchants and…more
| Administrative Law, Criminal Law, Finance & Banking, Securities Law, Wills, Trusts, & Estate Planning

May the donee of a limited testamentary power of appointment irrevocably and immediately exercise it inter vivos by contract?

The Delaware Chancery Court [In re Estate of Tigani, C.A No. 7339-ML (Del. Ch. Ct. Feb. 12, 2016)] has confirmed that the donee of a limited testamentary power of appointment may not irrevocably, immediately, and effectively…more
| Civil Procedure, Civil Remedies, Family Law, Taxation, Wills, Trusts, & Estate Planning

Another rejection of the intent-defeating, sole-benefit-of-the-beneficiaries principle, the policy centerpiece of the Uniform Trust Code

In §6.1.2 of Loring and Rounds: A Trustee’s Handbook (2016), the authors report on the ongoing academic debate between Prof. John H. Langbein and Prof. Jeffrey A. Cooper over the merits of the sole-benefit-of the-beneficiaries…more
| Conflict of Laws, Education, Family Law, Professional Malpractice, Wills, Trusts, & Estate Planning

Sole interest or best interest: Equity's traditional default loyalty principle is under attack

Some in academia have been advocating that trustees generally be held to a best-interest-of-beneficiary default standard rather than the traditional and more rigorous sole-interest-of-beneficiary default standard. See Loring and…more
| Civil Remedies, Family Law, Nonprofit Law, Securities Law, Wills, Trusts, & Estate Planning

The financial advisor who sells a trustee an insurance contract that is inappropriate in light of the trust's purposes risks primary fiduciary liabilty in equity to non-contracting parties

It is an understatement that the Minnesota Court of Appeals in In re: Amendment and Restatement of Revocable Living Trust of Alfred J. Berget dated February 15, 2005 [A13-2295, Dec. 8, 2014] afforded the trustee who had invested…more
| Business Torts, Commercial Law & Contracts, Insurance, Products Liability, Wills, Trusts, & Estate Planning

Is there a practical difference between Equitable Deviation and Cy Pres when it comes to seeking modification under the Uniform Trust Code of a charitable trust's administrative term?

Assume an income-only charitable trust with the following administrative term: The trustee may only invest in “insured bank accounts and government securities.” Section 412(b) of the Uniform Trust Code (UTC) provides that a…more
| Administrative Law, Civil Procedure, Civil Remedies, Nonprofit Law, Wills, Trusts, & Estate Planning

May a trustee with discretionary authority to make principal distributions ever decant for the sole purpose of increasing his/her/its compensation?

The Uniform Trust Code requires that the trustee notify the qualified beneficiaries, usually the current beneficiaries and presumptive remaindermen, in advance of any change in the method or rate of the trustee’s compensation.28…more
| Civil Remedies, Conflict of Laws, Family Law, Taxation, Wills, Trusts, & Estate Planning

Employing the term "family" in trust instruments and trust-related legislation is asking for trouble

Employing the term “family” in trust instruments and trust-related legislation is asking for trouble. In §8.15.6 of Loring and Rounds: A Trustee’s Handbook (2016) the authors explain why the meaning of the term in a given…more
| Business Organizations, Family Law, Insurance, Professional Malpractice, Wills, Trusts, & Estate Planning

The challenge of maintaining the privacy of a non-testamentary discretionary trust with multiple permissible beneficiaries

Assume X is an innocent discretionary beneficiary of an irrevocable non-testamentary trust with multiple permissible beneficiaries (the “trust”). Y is a not-so-innocent co-beneficiary, that is to say he has not been paying his…more
| Civil Procedure, Civil Remedies, Family Law, Privacy, Wills, Trusts, & Estate Planning

Beware of conflating power of appointment doctrine and merger doctrine in the trust context

Assume a trust that was initially for the benefit of its settlor (who is now dead) has the following additional terms: All net trust-accounting income to settlor’s surviving spouse (X) for life; trustee may invade principal for…more
| Family Law, Insurance, Professional Malpractice, Taxation, Wills, Trusts, & Estate Planning

Conflating tax law and trust law: The strange case of Ciampa v. Bank of America.

Under the Internal Revenue Code, an Individual Retirement Account (IRA) may be a trust. See 26 U.S. Code § 408(a). Or it may be a custodianship. See sub-section (h) to §408. Here is sub-section (h) verbatim: FOR PURPOSES OF…more
| Administrative Law, Business Organizations, Finance & Banking, Taxation, Wills, Trusts, & Estate Planning

A permissible beneficiary's equitable property interest under an irrevocable discretionary trust is contingent, not vested, the divorce case of Pfannenstiehl vs. Pfannenstiehl notwithstanding

A permissible beneficiary’s equitable property interest under a discretionary trust is contingent, not vested. The critical condition precedent that renders the interest contingent is that the trustee must exercise his…more
| Civil Procedure, Civil Remedies, Family Law, Professional Malpractice, Wills, Trusts, & Estate Planning

Is a Hungarian trust a clone of the Anglo-American trust, or just a type of contract?: Parsing the asset-management provisions of the New Hungarian Civil Code.

On March 15, 2014, the Hungarian Parliament enacted into law the New Hungarian Civil Code (NHCC). The NHCC creates out of whole cloth a civil law fiduciary asset-management vehicle (FAM) that in form and function bears some…more
| Administrative Law, Business Organizations, Commercial Law & Contracts, International Law & Trade, Wills, Trusts, & Estate Planning

Whether the trust relationship should be fundamentally transmogrified into a juristic entity/person

In re Estate of Fournier, 902 A.2d 852 (Me. 2006) illustrates how a fundamental conversion of the trust relationship by legislation or otherwise into a juristic entity/person might well limit the trust’s practical applicability,…more
| Business Organizations, Family Law, Real Estate - Commercial, Real Estate - Residential, Wills, Trusts, & Estate Planning

A trust is not an agency

The trustee is not an agent of the beneficiary. The trustee's duty not to delegate the administration of the trust could well be implicated if the trustee without authority were to behave as if he were the beneficiary's agent…more
| Business Organizations, Finance & Banking, Family Law, Wills, Trusts, & Estate Planning, Nonprofit Law
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