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Contests & Litigation

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Contests and litigation are something I seek to avoid by using appropriate drafting. I try to strike a balance, based primarily on my client's desires, philosophy and inclinations. On the one hand, I do not routinely recommend a "No Contest" or "In Terrorem" clause or completely (to the extent allowable) absolve all fiduciaries from all liability, because if a fiduciary (e.g., executor, trustee) is extremely neglectful of its duties, most clients would want a remedy of some kind to be available. So, it all depends. Below is a recent article in which I came up with language that, with appropriate modifications, tries to address these issues.

2011 – Drafting Where the Only Thing Certain is Change and Litigation

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This article was prepared for the 2011 State Bar of Texas Professional Development Program "Advanced Drafting for Estate Planning and Probate." It contains a number of specimen Will and Trust clauses, with comments to them, designed to minimized abusive litigation.

2009 – What Every Individual Acting as Trustee Should Know About the New Uniform Prudent Investment and Principal Income Acts

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There are two UPIAs, which is confusing: the Uniform Principal and Income Act and the Uniform Prudent Investor Act. I call the former the UP&IA, and the latter UPIA, but most people call both UPIA. They have recently been adopted in one form or another in most states, and anyone who is establishing or administering a trust simply has to know something about them both. They are very important. This article give a good overview.

2007 – Valuation For Funding and Distribution Purposes, In Kind Distribution and “Appropriate Interest” on Pecuniary Gifts

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When an in-kind distribution is made in satisfaction of pecuniary gift (a gift of a dollar amount), or if a non prorata distribution is made of a percentage interest in the residue of an estate, there will be questions about how to value the property distributed, and what to do about appreciation and depreciation between the time the trust was funded or the date of death of a decedent and the date of distribution. Actually this subject is every bit as important as it is arcane. It is both. Usually, the fiduciary (executor or trustee) will have to either pay interest on a pecuniary gift (determined how?) or allow the gift to share in appreciation or depreciation. Also, there is the question of whether or not gain or loss is recognized by the estate or trust on the distribution. Until you read the Will or Trust and consult state law on the subject you won't know the answers to any of these questions. This article should be of some help in understanding the issues.


I include this Article on the litigation page because if you don't follow the rules, you will be inviting litigation. And, after several years have transpired between, say, a decedent's death and the satisfaction of a legacy, the question of how to value the property distributed to a legatee in satisfaction of the legacy, as well as the question of whether the legatee is entitled to in interest (and if so how much) can make a huge economic difference to the legatee.

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