Estates and Trusts Commons^™

Janus As A Client: Ethical Obligations When Your Client Plays Two Roles In One Fiduciary Estate, Karen Boxx, Philip N. Jones

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Is it possible for an attorney to have a conflict of interest when the attorney represents a trustee who is also a beneficiary of the trust? Is that situation similar to having two clients? What if the trustee is not only a beneficiary, but also a claimant against the trust? Since the trustee has three roles to play, is that situation similar to an attorney having three clients? The issue presented by these potential conflicts was one of the most vexing for the drafters of the Fifth Edition of the ACTEC Commentaries. The range of possible approaches goes from a …

Shakespeare In The Classroom: How An Annual Student Production Of King Lear Adds Dimension To Teaching Trusts And Estates, Karen E. Boxx

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I always begin the first day of my Trusts and Estates course by discussing the reasons for taking the class. While I note that some students may take the class to help in passing the bar exam or because family members have already asked them to draft wills, my list of reasons instead include: (1) exposure to the fiduciary relationship; (2) the real life ethical dilemmas faced by the lawyers; (3) learning to read and interpret state statutes; and (4) consideration of how law responds to societal changes and governs human relationships. This last reason is critical: Trusts and Estates …

Washington Trust Law's Extreme Makeover: Blending With The Uniform Trust Code And Taking Reform Further With Innovations In Notice, Situs, And Representation, Karen E. Boxx, Katie S. Groblewski

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Washington trust laws were comprehensively revised in 2011 and 2013, resulting in the integration of concepts from the Uniform Trust Code and the addition of some novel provisions. This article discusses in depth the evolution of Washington law regarding the duties to inform and report, the situs of a trust, and representation of interested parties. In addition, this article discusses other UTC provisions that were integrated into Washington statutes and gives an explanation of any departures from UTC language and prior Washington law.

Pro Se Executors—Unauthorized Practice Of Law, Or Not?, Michael Hatfield

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This Article clarifies why under Texas law an individual named as executor in a will has the right to offer the will for probate and otherwise appear in a probate court without hiring a lawyer. This Article first provides an overview of the independent administration provisions of the Texas probate code before reviewing the unauthorized practice of law prohibition and the pro se exception. After establishing that executors qualify for the pro se exception in Texas because executors appearing in court are exercising their own management rights—rather than the rights of "the estate" or the beneficiaries—the Article explores suggestions of …

Distinguishing Trustees And Protecting Beneficiaries: A Response To Professor Leslie, Karen E. Boxx

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Of Punctilios And Paybacks: The Duty Of Loyalty Under The Uniform Trust Code, Karen E. Boxx

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Loyalty has been cited as the most desired of traits from those who serve others. One reason that loyalty is so highly valued is that it is impossible to guarantee and impossible to buy. The trust law concept of the duty of loyalty acknowledges that human nature will cause any person to favor his or her personal interests over the interests of another, and it is this assumption of disloyalty that gives rise to the strict prohibitions of trustee conflicts of interest required under the label of "duty of loyalty."

The duty of loyalty has been called "the essence of …

Fighting The Probate Mafia: A Dissection Of The Probate Exception To Federal Court Jurisdiction, Peter Nicolas

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Despite the complexity and confusion surrounding the probate exception to federal court jurisdiction-or perhaps because of it-it has been given scant attention in the literature. This Article seeks to fill the gap. Part II of this Article sets forth the current application of the probate exception in the lower federal courts. Part III of this Article examines the statutory and constitutional constraints on the federal courts' exercise of subject matter jurisdiction over probate and probate related matters. Part III concludes that the probate exception is a mere gloss on the statutory grants of subject matter jurisdiction to the federal courts …

The Durable Power Of Attorney's Place In The Family Of Fiduciary Relationships, Karen E. Boxx

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The durable power of attorney is a deceptively simple document that allows one person to handle the affairs of an incapacitated person without court supervision. It is merely an agency relationship, established by a written document, that continues during the principal's incapacity. The durable power of attorney has been in widespread use only for about twenty-five years. It is very easy to draft, and its use escapes most court proceedings or even much need for legal assistance.

The durable power of attorney has therefore kept a low profile until now, and any attention it is now receiving focuses primarily on …

Gray's Ghost—A Conversation About The Onshore Trust, Karen E. Boxx

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A trust is an arrangement whereby one person (the trustor) transfers property to another person (the trustee) and directs the trustee to hold the property for the benefit of another person (the beneficiary). Multiple persons may fill each role; for example, there can be several beneficiaries or co-trustees. One person may play several of these roles; for example, the trustor may also serve as trustee or may be a beneficiary of the trust. However, if the same person plays all three roles alone, then no trust is created.

A self-settled trust is a trust that a person settles, or establishes, …