In 2008 the Colorado Legislature amended the Colorado Probate Code to add Part 5 to Article 10 of Title 15. Part 5, often referred to as “The Judges Toolbox,” contains procedures available to Colorado courts and interested persons to check the actions of errant fiduciaries and to do so early and efficiently. We recommend this […]
by C. Jean Stewart
From May 1995 through June 2011 I served as Presiding Judge of the Denver Probate Court. Lawyers occasionally complained when I asked them not to burden me with expert witness testimony on a matter of fiduciary fees or legal fees, citing CRE 702 as not contributing to my experience or knowledge on the topic. Often, under CRE 703 the opinion was not properly supported. While I understood their desire to dazzle me with their expert's opinion about the fairness and reasonableness of their upstanding client's proposed fee or, alternatively, about the outrageously excessive fee being siphoned off of the estate or trust by the unscrupulous fiduciary and his/her scumbag accountants and attorneys, I often stood pat on my original ruling that expert evidence would not be heard on the issue because it did not provide "scientific, technical, or other specialized knowledge that I thought would assist me in understanding the evidence or determining a fact in issue." CRE 702
Once or twice I had occasion to rule on a case with facts that I thought might form an excellent appellate case so that my approach could be challenged (and hopefully supported by the prevailing side). It never came to be so Colorado does not have a good appellate opinion on the point.
by Kelly Cooper
With the increasing diversity in the make up of today’s families, many estate plans now treat family members differently or disinherit certain family members completely. When there is unequal treatment or a disinheritance, estate planners often include no contest clauses in their documents to try to avoid costly disputes and litigation after a client’s death. Under Colorado law, a no contest clause is only enforceable against a beneficiary if the beneficiary lacked probable cause to bring a contest. An in-depth discussion of these clauses and the probable cause exception to enforceability was posted to our blog last week, to read it, click here. We expect the use of these clauses to increase and for clients to request these clauses as they become more familiar with them through media reports about the use of them in celebrities’ estate plans (e.g. Michael Jackson, Brooke Astor).
The topic for today is whether a contest clause in a trust agreement is subject to the same probable cause exception as a contest clause contained in a decedent’s will. Since a revocable trust is considered a will substitute, some will argue that there is no compelling reason to treat a contest clause in a revocable trust any differently than one in a will. While Colorado’s probate statutes are clear that a probable cause exception exists for contest clauses in wills, Colorado’s trust statutes do not contain any similar provision. Is this silence an oversight or an opportunity for planners?
by C. Jean Stewart
Relying on Section 3-1102 of the Uniform Probate Code, a provision included, in part, to prevent fiduciaries from blocking a compromise, the South Carolina Supreme Court recently refused to implement a settlement agreement among beneficiaries of the estate of the late James Brown when fiduciaries objected to the proposed settlement, Wilson v. Dallas, 27227, 2013 WL 697042 (S.C. Feb. 27, 2013) .
The appellants, who prosecuted the appeal, were successor fiduciaries who had been appointed (and then removed) by the trial court after family members and beneficiaries filed objections seeking removal of the original personal representatives and trustees. A South Carolina trial judge had presided over a 4-day hearing on the merits of the settlement, had approved the agreement and had ordered the fiduciaries to implement it. Instead, the objecting fiduciaries appealed the order, arguing that the settlement violated the intent of the Godfather of Soul, who died on Christmas Day in 2006.
Congratulations to our attorneys selected as Colorado Super Lawyers or Rising Stars for 2013 in the following areas: Estate and Trust Litigation: Super Lawyers Kelly Cooper Carol Warnick Rising Star Rebecca Klock Schroer Estate Planning and Probate: Super Lawyer David Crandall Laura Hundley Rising Star Chelsea May
by Carol Warnick
How many guns did you say the decedent owned? Are they all accounted for and safely stored? Who should be in possession of them during the administration period? If it is going to be the fiduciary, should the attorney suggest a background check if the fiduciary is an individual?
Firearms belonging to a decedent often present an ongoing dilemma for a fiduciary. Not only does the fiduciary have to worry about securing the firearms safely (firearms and potentially angry beneficiaries do not mix well) but they have to worry about identifying them correctly and understanding the transfer restrictions placed on the various classes of firearms. Even the mere possession of certain types of firearms can create issues for the fiduciary. Furthermore, an inappropriate transfer of a firearm by a fiduciary can result in liability for the fiduciary, the attorney, the beneficiaries receiving the transfer, or even third parties.
by Ticia Sanderson, paralegal ICCES is now Colorado’s electronic filing source in all but a few counties and our office has learned a few things about the system that might be helpful to other users. First , if you are filing a document that needs the Court’s immediate attention be aware that just because you […]
by Jean Stewart
Lance Armstrong, the road cycling legend who recovered from testicular cancer to win the grueling 2-week European bicycle race known as the Tour De France seven times has recently been revealed as a failed fiduciary.
In his two-part interview last week with Oprah Winfrey, Lance reports that among the hardest punishments so far meted out to him, is the decision of his Livestrong Foundation, the cancer research and victim’s support foundation that has raised and distributed millions to cancer causes, to ask him to step down as the Chairman and a member of the Board after the doping evidence piled up against him.
by Kelly Dickson Cooper As many of you know, the Colorado Bar Association has many wonderful and active subcommittees that provide important services to the legal profession and the public. Building on that great tradition, the Trust & Estate Section and the Elder Law Sections have approved the formation of a joint subcommittee to address […]
The Fiduciary Solutions group here at Holland & Hart wanted to communicate with current and potential clients in a new way that is accessible, efficient and useful. We hope you will enjoy and appreciate our new blog. Much of the content will find shared interests in the community of estates and trusts attorneys. Please visit […]