Articles Posted in Trust Disputes

The Hunt for Tom Clancy’s Estate Comes to an End

Popular author Tom Clancy wrote many iconic novels, and the story of his estate battle sounds like it comes straight out of a book. The author, who died at the age of 66 of heart failure, left an estate valued at $82 million. This $82 million estate includes an ownership interest in the Baltimore Orioles baseball team worth $65 million, a working World War II tank, a mansion on Chesapeake Bay and over $10 million in business interests from his novels and movie adaptations.

According to the original will, Clancy left his Chesapeake Bay home and other properties, along with any of his joint bank or investment accounts to his wife Alexandra. Clancy also left a portion of the residue of the estate to the Hopkin’s Wilmer Eye Institute, which he had previously given a $2 million donation in 2005. The rest of his estate was to be divided between a series of trusts. The 2007 will originally provided for three trusts and divided the rest of the estate as follows: one-third for Alexandra, one third for Alexandra to use while she was alive and then passing to their daughter, and one-third to be divided among his four children from his previous marriage.

When a Trustee Goes Bad: Removal of a Trustee

Trustees play a critical role in trust administration. Settlors, or creators of the trust, give trustees legal title and management authority over the settlor’s property for the benefit of the beneficiaries.  An unruly trustee could improperly deplete the trust property and leave nothing for the beneficiaries.  Florida recognizes the importance of the trustee’s role and has numerous statutes regulating trustees and protecting beneficiaries.  The provisions include, but are not limited to:

  1. The trustee shall administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries, and in accordance with the Florida Trust Code. 736.0801, Fla. Stat. (2006).

B.B. King Estate Fight: One Year Later and No End in Sight

Legendary blues musician B.B. King passed away on May 14, 2015 due to congestive heart failure at the age of 89.  In a will created in 2007, King named his longtime business manager, Laverne Toney, as the executor/personal representative of his will.  The 2007 will, thus, puts Toney solely in charge of administering King’s assets, his property, and his trust.  In June 2015, a Las Vegas judge confirmed Toney’s appointment as sole executor, and rejected efforts to contest the will made by four of Mr. King’s children.

Although B.B. King did not have children from either of his two marriages, he nevertheless claimed to have 15 children with 15 different women over the course of his lifetime.  Confusing the situation still further, King’s doctors determined in the 1980’s that due to King’s low sperm count, he was not able to conceive children.  However, King never disputed paternity, and claimed to be the father of all 15 children, 11 of whom are still alive and have been fighting Toney over the estate.

New Orleans Saints and New Orleans Pelicans owner, Tom Benson, is currently involved in a family dispute and a series of judicial proceedings emerging from changes in his estate planning documents. After becoming displeased with the way his daughter—Renee Benson—and her two kids, Rita and Ryan, began acting upon his remarriage, Mr. Benson decided to strip his descendants of ownership shares of the Saints and Pelicans.  These ownership shares were provided for in trusts that Benson had created to benefit Renee, Rita, and Ryan.

However, under the terms of the trusts, removal of the shares requires that Mr. Benson replace them with other assets of equal value.  Benson has tried to fulfill this obligation, but his attempts have proven futile as the trustees have refused to accept promissory notes Benson has attempted to deliver in exchange for the ownership interest in the sports teams.  The trustees believe that Benson has not offered assets equal to the value of the ownership interests, as questions still exist as to the dollar value of the assets.

Under Florida law, if the terms of the trust dictate that a third party has the authority to control the actions of a trustee, that third-party authority may be owed deference over the trustee’s discretionary power.  See In re Celotex Corp., 487 F.3d 1320 (11th Cir. 2007). If this case was being litigated in Florida and Benson had reserved the authority to control the actions of the funds’ trustees, litigation may have been avoided.  Needless to say, a well-written and comprehensive estate plan can make all the difference when flexibility is necessary to handle previously unforeseen circumstances.

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When you are gone, will your surviving heirs abide by every wish of your estate just as you envisioned, or will they fight over their own interpretations of your will? Ambiguous language in estate planning can create friction among your loved ones when they are at their most vulnerable, erasing the love underlying your final gifts.
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Florida is one of many states that allow adult adoption, which is often used to allow a stepparent to adopt a stepchild later in life. See Fla. Stat. § 63.042. Florida has, however, limited this ability in certain circumstances, such as adopting one’s spouse. See Fla. Stat. § 63.042(2)(c) (finding that a married person may not adopt his or her spouse). But, unlike other states, adoptees are presumed to be descendants of their adoptive parents for the purposes of intestate succession and class gifts. See Fla. Stat. § 732.108; see also Fla. Stat. § 732.608. This is unlike other similar provisions, such as the Uniform Probate Code §2-705, which limits an adult adoptee’s right to inherit through class gift provisions of wills and other governing instruments.
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When a trust has been executed in a foreign jurisdiction by a settlor who subsequently becomes a resident of Florida, such a trust will often recite that the law of the foreign jurisdiction controls. The fact that a resident decedent leaves little or no property in the state is not necessarily a bar to administering the decedent’s estate in Florida. A domiciliary administration could be established in Florida, and the property could be administered where it is located under ancillary proceedings. However, section 736.0205, Florida Statutes, provides that if a party objects, the court shall not entertain trust proceedings under section 736.0201, Florida Statutes, for a trust registered, or having its principle place of administration, in another state, except under limited circumstances. These circumstances include situations in which all interested parties could not legally be bound by litigation in the courts of the foreign state where the trust is registered or has its principle place of administration. Fla. Stat. § 736.0205. Furthermore, the court may condition a stay or dismissal of a foreign trust proceeding on the consent of any party to jurisdiction of the state where the trust is registered or has its principle place of business. Id. The court may also grant a continuance or enter any other appropriate order. Id.
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On Tuesday, June 4, 2013, a group of animal rights advocates spent their day at the Miami-Dade County Commission waiting for the final approval of the “Pets’ Trust,” only to hear that the city had deferred the decision for two weeks. The “Pets’ Trust,” which was overwhelmingly approved by voters in a straw ballot last November, is aimed at protecting unwanted and stray animals from euthanasia. The Trust would be funded by an additional $10 per $100,000 property tax assessment, but commissioners said they were concerned that Miami-Dade voters did not understand that the “Pets’ Trust” would be paid for by a property tax increase.
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Florida law mandates that a trustee keep the qualified beneficiaries of a trust reasonably informed of the trust and its administration. Fla. Stat. § 736.0813. This imposes a duty on the trustee to provide a trust accounting annually to each qualified beneficiary of an irrevocable trust. A trust accounting is required to include information regarding significant transactions affecting the trust administration during the accounting period, compensation paid to the trustee, gains and losses realized during the accounting period, and, to the extent feasible, the value of trust assets, among other things. Fla. Stat. § 736.08135. If the trustee fails to provide annual accountings to the qualified beneficiaries, the qualified beneficiaries may have a breach of trust action against the trustee. Fla. Stat. § 736.1001. However, if the trustee has provided the qualified beneficiaries with a trust disclosure document (including an accounting), then there may be a statute of limitations that affects the qualified beneficiaries’ claim against the trustee. If the trustee has provided an accounting, and the qualified beneficiary believes he has a cause of action based on that accounting, then the qualified beneficiary must make an objection within 6 months. Fla. Stat. § 736.1008.
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What happens when the personal representative of an estate is not performing his or her duties or is not acting in the best interest of the estate? The Florida Probate Code lists causes for removal of a Personal representative. In addition to a physical or mental incapacity that would prevent a personal representative from performing his or her duties, the following are other circumstances and conditions under which the pesonal representative of an estate may be validly removed:

  1. Failure to comply with a court order;
  2. Failure to account for the sale of property or provide an inventory;
  3. Wasting the assets of an estate;
  4. Failure to post bond;
  5. Conviction of a felony;
  6. Insolvency of a corporate personal representative;
  7. Except for a surviving spouse, acquiring a conflict of interest that may or will interfere with the administration of the estate;
  8. Revocation of the will naming the person as personal representative;
  9. Removal of Florida as a Domicile, unless domicile is not a requirement; or
  10. If the personal representative would not now be entitle to appointment.

Any interested person may petition for the removal of a personal representative. The petition must allege an interest and facts comprising a statutory ground for removal. Fla. Prob. R. 5.440. Furthermore, the removal of a personal representative appointed by a decedent is a last resort. See In re Estate of Murphy’s, 336 So.2d 697 (Fla. 4th DCA 1976).
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