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ABA BRIEFING | PARTICIPANT’S GUIDE

Twenty Steps to Avoid Fiduciary Litigation

2016 Trust and Estate Planning Series

Thursday, November 3, 2016

Eastern Time 1:00 p.m.–3:00 p.m.

Central Time 12:00 p.m.–2:00 p.m.

Mountain Time 11:00 a.m.–1:00 p.m.

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American Bankers Association Trust and Estate Planning Briefing Series Twenty Steps to Avoid Fiduciary Litigation Thursday, November 3, 2016 • 1:00 – 3:00 p.m. ET

DISCLAIMER This Briefing will be recorded with permission and is furnished for informational use only. Neither the speakers, contributors nor ABA is engaged in rendering legal nor other expert professional services, for which outside competent professionals should be sought. All statements and opinions contained herein are the sole opinion of the speakers and subject to change without notice. Receipt of this information constitutes your acceptance of these terms and conditions.

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II

Table of Contents

TABLE OF CONTENTS ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II

SPEAKER & ABA STAFF LISTING ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III

PROGRAM OUTLINE ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV

CONTINUING EDUCATION CREDITS INFORMATION ... . . . . . . . . . . . . . . . . . . . . . . . . . . V

CPA SIGN-IN SHEET & CERTIFICATE OF COMPLETION REQUEST ... . . . . VI

CFP SIGN-IN SHEET & CERTIFICATE OF COMPLETION REQUEST ... . . . VII

INSTRUCTIONS FOR REQUESTING CERTIFICATE OF COMPLETION . VIII

PROGRAM INFORMATION ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ENCLOSED

PLEASE READ ALL ENCLOSED MATERIAL PRIOR TO BRIEFING. THANK YOU.

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Speaker and ABA Staff Listing

Speakers Thomas W. Abendroth Partner Schiff Hardin LLP 233 South Wacker Drive Chicago, IL 60606 (312) 258-5500 [email protected] Charles “Skip” D. Fox, IV Partner McGuireWoods LLP Court Square Building 310 Fourth Street, NE, Suite 300 Charlottesville, VA 22902 (434) 977-2500 [email protected] Sean F. Murphy Partner McGuireWoods LLP 1750 Tysons Boulevard Suite 1800 Tysons, VA 22102-4215 (703) 712 5487 [email protected]

ABA Briefing Staff Cari Hearn Senior Manager (202) 663-5393 [email protected] Linda M. Shepard Senior Manager (202) 663-5499 [email protected]

American Bankers Association 1120 Connecticut Avenue, NW Washington, DC 20036

mailto:[email protected]






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PROGRAM OUTLINE TIMES SESSION AND SPEAKERS

12:45 – 1:00 p.m. ET

Pre-Seminar Countdown

1:00 – 1:03 p.m.

Welcome and Introduction 1Source International

1:03 – 1:05 p.m.

Introductory Comments and Speaker Introduction Skip Fox, McGuireWoods LLP

1:05 – 1:55 p.m.

Part 1 Background Information Increase in Fiduciary Litigation Types of Preventative Measures Trustee Duties Screening Process Trust Discussions Trust Documentation Sean Murphy, McGuireWoods LLP

1:55 – 2:05 p.m.

Questions and Answers

2:05 – 2:55 p.m.

Part II Trust Administration—Relationship with Beneficiaries Trust Process Trust Recordkeeping Email Communications Due Diligence Post Merger and Acquisitions Investment Diversification Trust Termination Alternative Dispute Resolution Payment of Attorney’s Fees Sean Murphy, McGuireWoods LLP

2:55 – 3:00 p.m.

Questions and Answers Wrap-up


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Continuing Education Credits Information

The Institute of Certified Bankers™ (ICB) is dedicated to promoting the highest standards of performance and ethics within the financial services industry.

The ABA Briefing, “Twenty Steps to Avoid Fiduciary Litigation” has been reviewed

and approved for 2.5 continuing education credits towards the CTFA (Ethics), CISP, CRSP and CSOP designations.

To claim these continuing education credits, ICB members should visit their ICB Certification Manager on the ABA’s Learning Management System (LMS) at https://aba.csod.com/client/aba/default.aspx. You will need your

member ID and password to access your personal information. If you have difficulty accessing the Website and/or do not recall your member ID and password, please contact ICB at [email protected] or 202-663-5092.

American Bankers Association is registered with the National Association of State Boards of Accountancy (NASBA) as a sponsor of continuing professional education on the National Registry of CPE Sponsors. State boards of accountancy have final authority on the acceptance of individual courses for CPE credit. Complaints regarding registered sponsors may be submitted to the National Registry of CPE Sponsors through its website: www.learningmarket.org.

2.0 CPE credit hours (Administrative Practice) will be

awarded for attending this group-live Briefing.

Participants eligible to receive CPE credits must sign in and out of the group-live Briefing on the CPA Required Sign-in/Sign-out Sheet included in these handout materials. A CPA/CPE Certificate of

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Continuing Legal Education Credits This ABA Briefing is not pre-approved for continuing legal education (CLE) credits. However, it may be possible to work with your state bar to obtain these credits. Many states will approve telephone/ audio programs for CLE credits; some states require proof of attendance and some require application fees. Please contact your state bar for specific requirements and submission instructions.

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VI

CPA Required Sign-in/Sign-out Sheet

CPAs may receive up to 2.0 hours of Continuing Professional Education (CPE) credit for participating in this group-live Briefing.

INSTRUCTIONS: 1. Each participating CPA must sign-in when he/she enters the room and sign-out when he/she leaves

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Certificate of Completion. This CPE Sign In/Out Sheet must be scanned and uploaded with the CPE/CPA Request for

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VII

Instructions for Receiving Certificates of Completion

CPA / CPE Certificate of Completion

Submission of a sign-in/sign-out sheet AND electronic request for a Certificate of Completion are required for the validation process to be completed.

NASBA requires ABA to validate your attendance BEFORE

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VIII

Certified Financial Planner Sign-In Sheet Program ID #: 223204

The Certified Financial Planners (CFP) Board has granted 2.0 credits for this program. The participant MUST MAIL the sign-in sheet AND a copy of the CFP approved Certificate of Completion (Request for Certificate of Completion instructions found below) in order to receive continuing education credits for attending this live program.

Please mail both the sign-in sheet and Certificate of Completion to: Barbara Swan, American Bankers Association, 1120 Connecticut Ave., NW, Ste. 600, Washington, DC 20036

Please note: CFP credits are ONLY awarded to those who have listened to the live broadcast of this Briefing.

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aba.com1-800-BANKERS

Twenty Steps to Avoid Fiduciary Litigation2016 Trust and Estate Planning Briefing Series

American Bankers Association Briefing/WebinarThursday, November 3, 20161:00 – 3:00 p.m. ET


Disclaimer

This Briefing will be recorded with permission and isfurnished for informational use only. Neither the speakers,contributors nor ABA is engaged in rendering legal norother expert professional services, for which outsidecompetent professionals should be sought. All statementsand opinions contained herein are the sole opinion of thespeakers and subject to change without notice. Receipt ofthis information constitutes your acceptance of these termsand conditions.

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Presenters

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• Sean F. Murphy, Partner, McGuireWoods, LLP

• Charles D. Fox IV, Partner, McGuireWoods, LLP

• Thomas W. Abendroth, Partner, Schiff Hardin LLP


Agenda

Part One• Background Information• Increase in Fiduciary Litigation• Types of Preventative Measures• Trustee Duties• Screening Process• Trust Discussions• Trust Documentation

Part Two• Trust Administration—Relationship

with Beneficiaries• Trust Process• Trust Recordkeeping• Email Communications• Due Diligence Post Merger and

Acquisitions• Investment Diversification• Trust Termination• Alternative Dispute Resolution• Payment of Attorney’s Fees

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U.S. Wealth Transfers2007 – 2061

Estate Transfers: $59 Trillion• Transfers from 93.6 Million Estates

Recipients:• Heirs - $36 Trillion• Charities – $6.3 Trillion• Federal Government - $5.6 Trillion• Lifetime Transfers: $10.0 Trillion• Estate Closing Costs: $1.1 Trillion

Increased Lifetime Giving:• Charities - $20.6 Trillion• Private Foundations/Trusts - $1.5 Trillion

Overall Growth in Transfer Projections Since 1999:

12% or $6.1 Trillion

A Golden Age of Philanthropy Still Beckons: National Wealth Transfer and Potential for Philanthropy, John J. Havens and Paul G. Schervish, Center of Wealth and Philanthropy, Boston College, May 28, 2014.

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Significant Increase In Fiduciary Litigation

• Tougher Economic Conditions Since 2008

• Greater Transfers of Wealth

• Increased Concentration of Wealth

• Increased Competition For Fiduciary Business

• Trust and Estate Administration Has Become More Complex and More Demanding

• Divorce Rate Has Not Significantly Decreased

• Many Sources on Financial Planning and Investment Readily Available, Making Everyone an Instant Expert on Investments

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Ways to Avoid Fiduciary LitigationSeven Areas of Focus

1. Trust In-Take and Screening

2. Trust Administration

3. Due Diligence following Post-Merger/Acquisition

4. Investment Diversification

5. Trust Termination

6. ADR Alternatives

7. Bank Pay v. Trust Pay: Recovery of Trustee’s Attorneys’ Fees

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Trust Intake and Screening

Obtain and Read All Trust Documents

• Read Thoroughly Governing Trust Instrument

• Consider a Second Review of Trust Documents By Trust Committee or Trust Counsel or Both

• Obtain any Missing Documents

Is it Worth the Risk?

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Trust Intake and ScreeningTrust Document Review

Key Issues for Trust Document Review• Look For Any Trustee Restrictions in Trust Documents

• Determine What Powers of Appointment Exist

• Are There Trustee Removal Provisions? If So, What Are They and How Do They Work?

• Are There Exculpatory Clauses?

• Is There A Choice of Law Provision? If So, What State Law Will Govern?

• Does Trust Require Trustee Reports or Accountings?

• Are There Any Trust Document Ambiguities or Issues That Should Be Addressed?

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Trust Intake and ScreeningAsking the Tough Questions

BENEFICIARY QUESTIONS:• Who Are All The Possible Trust Beneficiaries?

To Whom Is a Fiduciary Duty and Responsibility Owed?

Determine From Whom Consent Is Needed

Put Together a Family Tree

TRUSTEE QUESTIONS:• Is Trustee Being Replaced? If So, Why?

Will There Be Co-Trustees?

If There Are Co-Trustees, Is There a Requirement for Unanimous Decision or Majority Vote?

If There Is An Even Number of Trustees, Is There a Tie-Breaking Mechanism?

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Trust Intake and ScreeningBackground Investigation

• Background Research on Grantor/Beneficiaries/Co-Trustees

• Determine If There Are Any Potential Conflicts of Interest That Should Be Addressed

• Is There Any Pending Litigation, Dispute or Investigation Involving Grantor or Beneficiaries?

• Review and Analysis of Trust Assets and Portfolio

• Determination of the Trust’s Tax Status - Are There Any Tax Issues?

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Trust Intake and ScreeningManaging Expectations

• Discussions With Grantor/Beneficiaries/ Co-Trustees on Trust Goals/Objectives

• Trustee Discussions With Grantor/Beneficiaries/Co-Trustees on Trust Provisions

• Discussions With Trust Beneficiaries on Trust Process

• Disclose and Discuss Trustee Fees and Commissions Explain and Document How Fees/Commissions

Will Be Paid Discussions of Fees/Commissions for

Co-Trustee• Discuss Distinctions Between Treatment of

Principal and Income

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Trust Intake and ScreeningDocumenting Your Work

• Comply With and Follow Company’s Intake Procedures and Risk Analysis Document Your Compliance With Them

• If Accept or Decline Trustee Position, Document What Was Done and Why

• Document Discussions and Communications With Grantor and Beneficiaries

• Document Discussions With Any Advisors or Third Parties

• Document Transfers of Trust Assets

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If you are participating on the Web:Enter your Question in the Box Below

and Press ENTER / SUBMIT.

If you are participating by Phone:Email your Question to: [email protected]

ORPress *1 on your Telephone Keypad

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Trust AdministrationTrustee’s Fiduciary Duties in Administering A Trust

• Duty to Administer Trust By Its Terms

• Duty of Loyalty• Duty to Avoid Conflict of

Interests• Duty to Give Full

Disclosure• Duty to Give Notices• Duty to Furnish

Information• Duty to Communicate With

the Beneficiaries• Duty to Invest/Prudent

Investor Rule

• Duty to Exercise Reasonable Care and Skill

• Duty to Keep and Render Accounts

• Duty Not to Delegate• Duty to Enforce and Defend

Claims• Duty to Preserve Trust

Property and Keep That Property Separate

• Duty of Impartiality

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Trust Administration

There Should Be Regular Communication With Beneficiaries:

Respond to Beneficiary E-Mails, Letters and Telephone Calls

Have Periodic Meetings

Provide Status Reports

Provide Regular Statements

Provide Periodic Accountings

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Trust AdministrationRelationship Between Trustee and Beneficiaries

Be Aware That Prompt Disclosure and Description of Any Significant Event To Beneficiary:

• Will Start Statute of Limitations Running; and

• Beneficiary Consent to Trust Strategy With Full Knowledge of All Facts and Rights Can Block Later Beneficiary Claim

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Trust AdministrationExercising Fiduciary Discretion

Trustee Decision Making:• Should Be Consistent

Helps Avoid Claims of Favoritism or Abuse of Trustee Discretion

Trustee Cannot Favor Income Beneficiaries Over Remaindermen

• Should Avoid Indecision – Ignored Problems Don’t Go Away

• Should Avoid Prolonged Decision-Making Process That Requires Multiple Committee Reviews and Approvals

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Trust AdministrationExercising Fiduciary Discretion (cont’d.)

How To Avoid Problems:• Follow Bank’s Policies and Procedures

Document Your Compliance

• Regularly Track/Monitor Trust Assets

Require Regular Reports on Their Status, Activity and Any Potential Problems

• Avoid Constant Trust Officer Turnover

• Consult Colleagues, Supervisors or In-House Counsel As Needed

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Trust AdministrationExercising Fiduciary Discretion (cont’d.)

Remember:You Do Not Have “Absolute” or “Total” Discretion

The Beneficiaries Are Not Your Clients

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Trust AdministrationTrust Recordkeeping

Must Maintain Good Records• Need to Provide

Adequate Accountings• Need to Explain/Defend

Prior Decisions or Distributions

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Trust AdministrationTrust Recordkeeping (cont’d.)

AVOID THESE PROBLEMS:1. The Trustee cannot argue that its own inability to preserve its own records (or those of its

predecessors) for [these] Trusts of such high value forecloses the ability of the Objectants to challenge how those Trusts were administered. This argument is contrary to well-settled case law that a trustee must maintain accurate records. The records were insufficient. [T]he Portfolio manager testified that “there was very little paperwork that came with the trusts” when he inherited them in 1997. Also, many of the internal review records that were present were clearly never completed in the first instance, with entire pages left blank and unanswered.

* * * * *2. The Bank has produced inaccurate and incomplete records for the Trust and has not produced

accounting records prior to 1998. These accounting deficiencies fail to track the changes in the value in the Trust over time and do not fully identify the costs associated with the [investment]. The Bank’s records do not justify the fees charged and/or refunded.

The Bank owed a fiduciary duty to maintain proper Trust records. A trustee is bound to keep clear, distinct, and accurate accounts. The Bank breached its fiduciary duty to maintain proper trust records as demonstrated by its inability to produce accounting information for the period of October 11, 1955 to January 1, 1998. While the Bank produced some records for that period, there is little evidence of the funds received by the Bank during that time and no evidence of amounts paid to beneficiaries or for other items. The Bank’s accounting is incomplete and inadequate.

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Trust AdministrationEmails are Forever

Complaint, SEC v. Davis, No. 14 CV 1528 (S.D.N.Y. Mar. 6, 2014) (accusing Dewey & LeBouef LLP’s Chairman, Executive Director, Chief Financial Officer, Director of Finance and Controller of misconduct).

• December 31, 2008 email from the CFO to the Executive Director about what he did in the year-end effort: “Don’t even ask – you don’t want to know.”

• June 27, 2009 email from the CFO to the Director of Finance, noting there will be a new auditor, “I assume you [k]new this but just in case. Can you find another clueless auditor for next year?” to which the Director of Finance responded: “That’s the plan. Worked perfect this year.”

• May 28, 2009 schedule prepared by the Director of Finance and sent to the CFO, which included a $7,500,700 reduction entitled “Accounting Tricks.”

• November 10, 2009 e-mail from the CFO to the Chairman, Executive Director, COO and Director of Finance: “Keep in mind though that at these levels we will not have the cash to pay the partners by Jan. 31 since $25M is fake income.”

• December 4, 2008 e-mail from the CFO to the COO commenting on January 2009 bills: “I don’t know anything about [the contracts] and I don’t want to cook the books anymore. We need to stop doing that.”

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Trust AdministrationEmails are forever (cont’d.)

• Bank paid all net income from trust to only one of 17 beneficiaries from 1970 onward and ignored means test requirement of trust for income distributions. In 1998, new trust officer assigned to administer the trust reviewed how the bank had handled the issue of income distribution from the trust.

• This trust officer described this situation in an internal memorandum as “a debacle … well documented in the file”

but then said

“It is best to leave this issue as is.”

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Due Diligence Post-Merger and Acquisition

Illustrations:1. “Upon several mergers and consolidations, … Bank is the

successor to the original Trustee.”

2. [The Bank] became the corporate co-trustee through a series of bank acquisitions and mergers.

3. Through a series of mergers, the current corporate trustee is now … Bank, N.A., as the successor to the … Trust Company.

4. … served as trustee during his lifetime and named … Bank the successor trustee. … Bank, formerly …, later became … Bank. Defendant-appellee … Bank is the successor-in-interest to [these banks].

5. The … Trust named as trustee … Bank & Trust Company (…). Appellant … is the successor-in-interest to ….

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Due Diligence Post-Merger and AcquisitionTrust Review Checklist

Establish Review Threshold Amounts and Significant Risk Factors. Then:

• Review the trust documents

• Review All Trust Assets Including Miscellaneous Assets

• Review any pending litigation

• Review all pending audits and disputes with IRS

• Review all income, gift and estate tax returns for trusts and estates

• Review all recent bank examiners’ reports

• Determine all possible threats from beneficiaries and others

• Review all existing relationships with legal counsel for different trusts and estates

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Investment DiversificationA Litigation Magnet

Trustee In Trouble For Failure to Diversify:Example No. 1:

However, testimony demonstrated a pattern of negligence within the institution requiring no special or additional evidence to identify. On numerous occasions, the Trustee’s employees reviewed the highly concentrated holdings of the subject Trusts, recognized the need to diversify, and then failed to follow any cohesive plan for divestiture. Any sales of [the] stock that had occurred were simply due to the Trustee “needing cash to pay expenses.” The evidence demonstrates that the Trustee did not meet its own internal guidelines, and when the sporadic and cursory internal reviews of the Trust holdings did occur, the Trustee did not act upon its own recommendations.

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Investment DiversificationA Litigation Magnet (cont’d.)

Example No. 2:

The foregoing proof demonstrates that at no time during the administration of the trust did the Bank formulate any investment plan, let alone establish a plan to diversify its concentration of [this stock]. The Bank acted contrary to its internal policies to restrict its holding of any one stock to certain circumstances, none of which were presented here. The Bank failed to consider the best interests of the persons interested in the trust. The proof establishes that the Bank paid limited attention to the needs of the income beneficiary and virtually no attention to the remainder interests. The record is devoid of any proof that the Bank was proactive by assessing the volatility resulting from the concentration of [this stock] and the benefit to selling and diversifying the portfolio, obtaining [Beneficiary’s] written consent to retaining [the] stock, ascertaining the tax consequences, if any, to [Beneficiary] and determining whether the concentration jeopardized the remainder interest. Notably absent here is any proof that the Bank considered the increased risk to the trust portfolio by its continued concentration of one security in the portfolio. The record here establishes that the Bank: 1) failed to undertake a formal analysis of the trust by creating an investment plan; and 2) failed to conduct more than a superficial review of its holding of [these] shares and consider alternative investments.

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Trustee In Trouble for Diversifying:Example No. 3:

The Retention Provision found in Article II, ¶ 2 of the Trust specifically authorizes retention of the original stockholdings, absent “unusual circumstances.” While the term “unusual circumstances” is not defined in the Trust terms, the Court finds that the Bank’s recommendation to diversify assets does not constitute an unusual circumstance. A request by an income beneficiary to increase payments is also not an unusual circumstance justifying the deviation from the intent of the Retention Provision in the Trust.

The Bank breached its fiduciary duty to comply with the terms of the Trust by selling the Trust’s … stock in 1999. The terms of the Trust “specifically recommend that, except for unusual circumstances,” the trustees retain the stocks originally placed in the Trust, “regardless of whether or not such retention may appear to offend against what might ordinarily be considered a sound trust investment practice and the usual principles of investment diversification.” Neither [the beneficiary’s] requests for additional income, nor the Bank’s desire to diversify the Trust investments, constituted an unusual circumstance, as intended by the … as grantors of the Trust. There was no “unusual circumstance” justifying the sale of the …. stock, nor did the Bank make an adequate inquiry or determination that an “unusual circumstance” existed.

In re Burford, 2012 WL 6777389 (Trial Order) (Okl.Dist. Oct. 9, 2012)

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Successful Trustee Decision Not to Diversify:Example No. 4:

[Bank] made a reasonable determination that it was in the interests of the beneficiaries not to diversify the stock. First, [Bank] considered the liquidity of stock in making its decision not to diversify. … Several experienced trust officers from [Bank] testified that, because … is a closely held corporation, there was no market for its stock and, as a result, it would only be possible to sell the stock at a speculative price. The stock did not attract buyers; in fact … [the company] itself was not interested in purchasing the stock, except in small quantities at less than book value. Representatives from [Bank] held meetings with various financial advisors, including investment bankers and brokerage houses, and determined that a fair price for the stock could only be obtained via a sale of the entire company.

Additionally, [Bank] determined not to diversify upon consideration of other factors, such as the general economic situation of the trust assets, the expected tax consequences of investment decisions and the needs of the beneficiaries. [Bank] regularly reviewed the financial condition of the trusts’ assets based on a variety of internal reports and audits. As to tax consequences, [Bank] assessed that the … assets incurred a low tax cost. Compared to the high capital gains taxes that would result from a sale of the stock, [Bank] determined that the retention of the stock was the most advantageous means of maintaining the trust.

Finally, [Bank] concluded that the needs of the beneficiaries militated against diversification. The stock paid out considerable dividends such that selling the shares at a discounted price, for the sake of diversification, may have been imprudent. More importantly, there is an indication that the settlors of the trust wanted the ownership of … to remain in the family and the trusts were used as vehicles to achieve such result. [Bank] partially based its determination not to diversify on the family nature of the corporation, a material consideration.

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Investment DiversificationRemedial Measures

• Amend the Instrument

• Agreement of Beneficiaries/Letters of Retention. All beneficiaries sign a written agreement or letter that resolves any diversification issue or question. Can all potential beneficiaries be found? Is there virtual representation in governing state?

• Indemnification Agreement. Beneficiaries indemnify trustee on diversification issues.

• Exculpatory/Exoneration Provisions in Trust – E.g., Trustee’s Liability Limited to Acts of Fraud, Gross Negligence,

or Willful Misconduct. Not allowed or limited in certain states like New York.

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Investment DiversificationRemedial Measures (cont’d.)

• Creation of A Directed Trustee Arrangement. Trust instrument, court order or state statute authorizes a third party to direct the action of the trustee and protects trustee from liability for following those directions.

• Attorney’s Opinion. Creates advice of counsel defense.

• Court Order. Obtain a court order through a suit for advice and guidance that protects the trustee’s retention of a certain asset and/or relieves the trustee from any duty to diversify.

• Resignation. A trustee’s resignation is the last option to consider, but resignation may be the final effective means of escaping future liability.

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Investment DiversificationSuccess Stories

1. The Trust provides in its own terms that [Trustee] 1) may maintain the initially invested securities, 2) had no duty to diversify and 3) would only be liable for willful misconduct. These three provisions further insulate him from liability for the decline in the stocks during 2009 and 2010. Each provision reinforces the other and demonstrates an intent that [Trustee] could maintain the securities as they were without subjecting himself to any potential liability.

Tyler v. Tyler, 2013 Conn. Super. LEXIS 1901 (Conn. Super. Ct. Aug. 22, 2013)

2. Beneficiary signed LORs approving the Trust’s retention of [Bank] stock in 2004, 2005, and 2007. Beneficiary signed them each as a beneficiary and signed the 2007 LOR additionally on behalf of his father, pursuant to a durable power of attorney. Beneficiary’s signature on these letters was significant because a beneficiary can authorize a trustee to engage in an otherwise prohibited transaction.

W.A.K. v. Wachovia Bank, N.A., 2010 U.S. Dist. LEXIS 72289 (E.D.Va. July 19, 2010)

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Investment DiversificationSuccess Stories (cont’d.)

3. In his will, [Testator] expressed a desire that the Trust retain [the] stock, and he provided the trustees with the authority to

Hold and retain any bonds or shares of stock or other securities or other properties held or owned by me at my death, if in their discretion they shall deem it prudent and for the best interest of my estate so to do, notwithstanding the fact that the retention of such investments might, except for this express direction, be in violation of the laws of this State governing trust investments.

The probate court properly determined that this language creates a “safe harbor” protecting the Bank “from the diversification requirement that ordinarily would be deemed prudent.

In Re Wege Trust, 2008 Mich. App. LEXIS 1259 (Mich. Ct. App. June 17, 2008)

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Trust Termination

Can Arise From:

Trustee Removal

Trustee’s Resignation

Trust Ending By Its Terms

Trust Assets Exhausted

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Trust TerminationProtecting Yourself Post-Termination

• Approval of Accounts

• Full Releases

From All Beneficiaries

o How Do You Handle Children and Unborn Heirs?o Is there virtual representation in governing state?

From Successor Trustee

• Indemnification From Future Liability if Possible

• Agreement on Transfer of Trust Assets and Records

• Payment of Trustee’s Fees and Attorneys’ Fees

• To Avoid Court Involvement If Possible

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ADR AlternativesArbitration

Arbitration Clause In George Washington’s Will:

That all disputes (if unhappily they should arise), shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chosen by the disputants, each having the choice of one, and the third by those two – which three men thus chosen shall, unfettered by law or legal construction, declare their sense of the Testator’s intention; and such decision is, to all intents and purposes, to be as binding as if they had been given in the Supreme Court of the United States.

Last Will and Testament of George Washington, July 9, 1799, as filed with the Circuit Court for Fairfax County, Fairfax, Virginia.

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Possible Benefits:• Can Take Less Time Than Litigation

• Can Be Less Costly Than Litigation

• Typically Results in Decision That Binds All Parties

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Potential Problems:

• Can Be More Time-Consuming and Expensive Than Anticipated

• So far only two states – Florida and Arizona – have specific statutes authorizing and enforcing arbitration clauses in trust.

• Arbitration provisions in other states will only be enforceable if contained in “written agreement” or “contract”o Most courts have ruled that because trust is not contract,

arbitration provision not enforceable

• Some courts have ruled that where beneficiary is accepting some of the benefits of trust, beneficiary must accept everything in trust, including arbitration requirement.

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ADR AlternativesMediation

“Discourage litigation. Persuade your neighbors to compromise whenever they can. Point out to them how the nominal winner is often a real loser – in fees, expenses and wasted time.”

Abraham Lincoln’s Notes For A Law Lecture, July, 1850, taken from the Collected Works of Abraham Lincoln (edited by Roy Basler, et al. (1953).

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ADR AlternativesMediation

Benefits:• Much Faster Process• Significantly Less Expensive• Completely Confidential Process

o No Public Filings

• Neutral Third Party Serves as Mediator• Parties Involved Control The Process With Assistance

of Neutral Mediator• Resolution of Dispute Comes Only Through Voluntary

Agreement of All Participants• Can Include Mediation Requirement in Trust

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ADR AlternativesUse of Trust Protector

• Trust Can Designate Someone As Trust Protector

• Trust Can Require Submissions of Disputes to Binding Decision of Trust Protector

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Bank Pay v. Trust PayRequirements For Recovery of Trustee’s Attorneys’ Fees

• The requirement for recovery of attorney’s fees in trust and estate matters is a determination that they are reasonable:

“A trustee can properly incur and pay expenses that are reasonable in amount and appropriate to the purposes and circumstances of the trust and to the experience, skills, responsibilities, and other circumstances of the trustee.”

Restatement (Third) of Trusts § 88.

• “In a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney’s fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.”

Uniform Trust Code § 1004 (2010).

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Bank Pay v. Trust PayRequirements For Recovery of Trustee’s Attorneys’ Fees (cont’d.)

“In determining what amount is reasonable, the Court must first determine a lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate… [T]welve “Johnson” factors … guide a district court in determining a reasonable number of hours and rate:

(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney’s opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorney’s fees awards in similar cases.”

W.A.K. v. Wachovia Bank, N.A., 2010 U.S. Dist. LEXIS 79074 (E.D.Va. Aug. 5, 2010)

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Bank Pay v. Trust PayRequirements For Recovery of Trustee’s Attorneys’ Fees (cont’d.)

Additional Steps in Attorneys’ Fees Analysis:• Subtract Fees for Hours Spent

on Unsuccessful Claims and Award Percentage of Remaining Fees Based on Trustee’s Degree of Success.

• Court Must Make Determination That Fee Application Reflects Exercise of Billing Judgment and Discretion

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Bank Pay vs. Trust PayAllocating Attorneys’ Fees to a Beneficiary’s Share

Court has power to assess trustee’s legal fees against a beneficiary’s portion of trust when beneficiary has engaged in burdensome and unnecessary litigation.

See, Larkin v. Wells Fargo Bank, N.A., 2014 Minn. App. Unpub LEXIS 1077 (Minn. Ct. App. Oct. 6, 2014) (trial court properly ordered trustee’s legal fees be charged against portion of trust of beneficiary who had “… engaged in vexatious and burdensome litigation.”)

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If you are participating on the Web:Enter your Question in the Box Below

and Press ENTER / SUBMIT.

If you are participating by Phone:Email your Question to: [email protected]

ORPress *1 on your Telephone Keypad

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Sean F. Murphy - Partner (Tysons Office)

Sean Murphy is a litigation partner in the Private Wealth Services Group of McGuireWoods LLP. Sean regularly represents high net worth individuals and families, executors, guardians, conservators, beneficiaries and trustees in sensitive fiduciary matters in courts throughout the United States. Sean regularly represents these clients in fiduciary disputes including the prosecution and defense of:

• Probate and estate litigation• Trust disputes• Breach of fiduciary duty claims• Will contests• Construction of trusts• Reformation of private, split-

interest and charitable trusts• Accountings

• Guardianship litigation• Petitions for court instructions• Claims alleging or seeking

protection from allegations of undue influence and fraudulent conveyances

• Interpretation of or defense of testamentary capacity and a decedent’s intent

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2016 Trust and Estate Planning Series

Briefing Date Briefing Topic

Dec 1, 2016 Recent Developments in Estate and Trust Administration

Recordings Now Available

Life Insurance in a 21st Century Estate Plan

Uniform Fiduciary Access to Digital Assets Act (UFADAA) and Digital Assets

The New Paradigm in Trusts and Estate Valuation

Fiduciary Litigation Roundtable

Charitable Tales from the Crypt

Issues with Art and Other Collectibles in the Administration of Trusts and Estates

Are You a Fiduciary?


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Register Now at www.aba.com/trustbriefings


Announcing the 2017 Trust Series!

Briefing Date Briefing Topic

Feb 2, 2017 Current State of Asset Protection

Mar 2, 2017 The Section 2704 Valuation Rules and Their Effect on Advanced Estate Planning Techniques

Apr 6, 2017 Trustee Liability for Investments: A Review of the Current State of the Prudent Investor Rule; Delegation; and Direction

May 4, 2017 Fiduciary Litigation Roundtable

Jun 1, 2017 Planning in Illiquid Estates

Sep 7, 2017 Retirement Benefits

Oct 5, 2017 A New Look at Distribution Standards

Nov 2, 2017 Planning for the Elderly. What Can and Should Be Done for an Increasingly Aging Population?

Dec 7, 2017 Recent Developments in Estate and Trust Administration

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Register Today!

American Bankers Association Briefing / Webinar


Thursday, November 3, 2016 1:00 p.m. to 3:00 p.m. E.T.

Sean F. Murphy McGuireWoods LLP

1750 Tysons Boulevard Suite 1800

Tysons, VA 22102-4215 703.712.5000

[email protected]

Thomas W. Abendroth Schiff Hardin LLP

233 S. Wacker Drive, Suite 6600 Chicago, Illinois 60606

(312) 258-5501 [email protected]

Charles D. Fox IV McGuireWoods LLP

Court Square Building 310 Fourth Street, NE, Suite 300 Charlottesville, Virginia 22902

(434) 977-2500 [email protected]

Copyright © 2016 by Schiff Hardin LLP and McGuireWoods LLP All rights reserved

SEAN F. MURPHY is a litigation partner in the Tysons Corner office of

McGuireWoods LLP. Sean regularly represents high net worth individuals and families,

executors, guardians, conservators, beneficiaries and trustees in sensitive fiduciary matters in

courts throughout the United States. Sean regularly represents these clients in fiduciary disputes

including the prosecution and defense of:

• Probate and estate litigation

• Trust disputes

• Breach of fiduciary duty claims

• Will contests

• Construction of trusts

• Reformation of private, split-interest and charitable trusts

• Accountings

• Guardianship litigation

• Petitions for court instructions

• Claims alleging or seeking protection from allegations of undue influence and fraudulent conveyances

• Interpretation of or defense of testamentary capacity and a decedent’s intent

THOMAS W. ABENDROTH is a partner in the Chicago law firm of Schiff Hardin LLP and

practice group leader of the firm’s Private Clients, Trusts and Estates Group. He concentrates

his practice in the fields of estate planning, federal taxation, and business succession planning.

Tom is a 1984 graduate of Northwestern University School of Law, and received his

undergraduate degree from Ripon College, where he currently serves on the Board of Trustees.

He has co-authored a two-volume treatise entitled Illinois Estate Planning, Will Drafting and

Estate Administration, and a chapter on sophisticated value-shifting techniques in the book,

Estate and Personal Financial Planning. He is co-editor of Estate Planning Strategies After

Estate Tax Reform: Insights and Analysis (CCH 2001). Tom has contributed numerous articles

to industry publications, and served on the Editorial Advisory Board for ABA Trusts &

Investments Magazine. He is a member of Duke University Estate Planning Council. Tom is a

frequent speaker on tax and estate planning topics at banks and professional organizations. In

addition, he is a co-presenter of a monthly teleconference series on estate planning issues

presented by the American Bankers Association. Tom has taught at the American Bankers

Association National Graduate Trust School since 1990. He is a Fellow of the American College

of Trust and Estate Counsel.

CHARLES D. (“SKIP”) FOX IV is a partner in the Charlottesville, Virginia office of

the law firm of McGuireWoods LLP and chair of its Tax and Employee Benefits Department.

Prior to joining McGuireWoods in 2005, Skip practiced for twenty-five years with Schiff Hardin

LLP in Chicago. Skip concentrates his practice in estate planning, estate administration, trust

law, charitable organizations, and family business succession. He teaches at the American

Bankers Association National Trust School and National Graduate Trust School where he has

been on the faculty for over twenty-five years. Skip was an Adjunct Professor at Northwestern

University School of Law, where he taught from 1983 to 2005, and is currently an Adjunct

Professor at the University of Virginia School of Law. He is a frequent lecturer across the

country at seminars on trust and estate topics. In addition, he is a co-presenter of the long-

running monthly teleconference series on tax and fiduciary law issues sponsored by the

American Bankers Association. Skip has contributed articles to numerous publications and is a

regular columnist for the ABA Trust Letter on tax matters. He was a member of the editorial

board of Trusts & Estates for several years and was Chair of the Editorial Board of Trust &

Investments from 2003 until 2012. Skip is a member of the CCH Estate Planning Advisory

Board. He is the co-editor or author of seven books on estate planning subjects. Skip is a Fellow

of the American College of Trust and Estate Counsel (for which he is Vice President) and is

listed in Best Lawyers in America. In 2008, Skip was elected to the NAEPC Estate Planning

Hall of Fame. He is also Chair Emeritus of the Duke University Estate Planning Council and a

member of the Advisory Committee of the Heckerling Institute on Estate Planning and the

Princeton University Planned Giving Advisory Council. Skip has provided advice and counsel

to major charitable organizations and serves or has served on the boards of several charities,

including Episcopal High School (from which he received its Distinguished Service Award in

2001) and the University of Virginia Law School Foundation. He received his A.B. from

Princeton, his M.A. from Yale, and his J.D. from the University of Virginia. Skip is married to

Beth, a retired trust officer, and has two sons, Quent and Elm.

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I. U.S. Wealth Transfers - 2007 – 2061

A. Estate Transfers: $59 Trillion

1. Transfers from 93.6 Million Estates

B. Recipients

1. Heirs - $36 Trillion

2. Charities – $6.3 Trillion

3. Federal Government - $5.6 Trillion

4. Lifetime Transfers: $10.0 Trillion

5. Estate Closing Costs: $1.1 Trillion

C. Increased Lifetime Giving

1. Charities - $20.6 Trillion

2. Private Foundations/Trusts - $1.5 Trillion

D. Overall Growth in Transfer Projections Since 1999

1. 12% or $6.1 Trillion

II. Significant Increase In Fiduciary Litigation

A. Tougher Economic Conditions Since 2008

B. Greater Transfers of Wealth

C. Increased Concentration of Wealth

D. Increased Competition For Fiduciary Business

E. Trust and Estate Administration Has Become More Complex and More Demanding

F. Divorce Rate Has Not Significantly Decreased

G. Many Sources on Financial Planning and Investment Readily Available, Making Everyone an Instant Expert on Investments

III. Preventative Measures - Discuss in Seven Areas

A. Trust In-Take and Screening

B. Trust Administration

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C. Post-Merger/Acquisition Trust Review

D. Investment Diversification

E. Trust Termination

F. ADR Alternatives

G. Bank Pay v. Trust Pay: Recovery of Trustee’s Attorneys’ Fees

IV. Trustee’s Fiduciary Duties in Administering A Trust

A. Duty to Administer Trust By Its Terms

B. Duty of Loyalty

C. Duty to Avoid Conflict of Interests

D. Duty to Give Full Disclosure

E. Duty to Give Notices

F. Duty to Furnish Information

G. Duty to Communicate With the Beneficiaries

H. Duty to Exercise Reasonable Care and Skill

I. Duty to Keep and Render Accounts

J. Duty Not to Delegate

K. Duty to Enforce and Defend Claims

L. Duty to Preserve Trust Property and Keep That Property Separate

M. Duty of Impartiality

N. Duty to Invest/Prudent Investor Rule

V. Use a Thorough Screening Process – Is It Worth The Risk? (Part One)

A. Obtain and Read All Trust Documents

1. Read Thoroughly Governing Trust Instrument

2. Consider a Second Review of Trust Documents By Trust Committee or Trust Counsel or Both

3. Obtain any Missing Documents

B. Key Issues for Trust Document Review

1. Look For Any Trustee Restrictions in Trust Documents

2. Determine What Powers of Appointment Exist

3. Are There Trustee Removal Provisions? If So, What Are They and How Do They Work?

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4. Are There Exculpatory Clauses?

5. Is There A Choice of Law Provision? If So, What State Law Will Govern?

6. Does Trust Require Trustee Reports or Accountings?

C. Are There Any Trust Document Ambiguities or Issues That Should be Addressed or Resolved at the Outset?

1. Is Court Approval Required?

D. If Trust Instrument Not Yet Drafted, Is There an Opportunity To Provide Guidance?

1. Make Necessary Conflict Disclosures

VI. Use a Thorough Screening Process – Is It Worth The Risk? (Part Two)

A. Who Are All The Possible Trust Beneficiaries?

1. To Whom Will You Owe a Fiduciary Duty and Responsibility?

2. Determine From Whom You Need Consent

3. Put Together a Family Tree

B. Are You Replacing a Trustee? If So, Why?

1. Will There Be Co-Trustees?

2. If There Are Co-Trustees, Is There a Requirement for Unanimous Decision or Majority Vote?

3. If There Is An Even Number of Trustees, Is There a Tie-Breaking Mechanism?

VII. Background Investigation

A. Background Research on Grantor/Beneficiaries/Co-Trustees

B. Determine If There Are Any Potential Conflicts of Interest That Should Be Addressed

C. Is There Any Pending Litigation, Dispute or Investigation Involving Grantor or Beneficiaries?

D. Review and Analysis of Trust Assets and Portfolio

E. Determination of the Trust’s Tax Status - Are There Any Tax Issues?

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VIII. Trust Discussions

A. Discussions With Grantor/Beneficiaries/Co-Trustees on Trust Goals/Objectives

B. Discussions With Trust Beneficiaries on Trust Process

C. Disclose and Discuss Trustee Fees and Commissions

D. Explain and Document How Fees/Commissions Will Be Paid

E. Discussions of Fees/Commissions for Co-Trustee

F. Discuss Distinctions Between Treatment of Principal and Income

IX. Trust Documentation

A. Comply With and Follow Company’s Intake Procedures and Risk Analysis

B. Document Your Compliance With Them

C. If Accept or Decline Trustee Position, Document What Was Done and Why

D. Document Discussions and Communications With Grantor and Beneficiaries

E. Document Discussions With Any Advisors or Third Parties

F. Document Transfers of Trust Assets

X. Trust Administration – Relationship with Beneficiaries

A. Develop Productive Relationships With All Beneficiaries

B. Communicate Regularly With Beneficiaries

1. Respond Promptly to Beneficiary E-Mails, Letters and Telephone Calls

2. Have Periodic Meetings With Beneficiaries

3. Provide Status Reports

4. Send Regular Statements

5. Provide Periodic Accountings

6. Provide Prompt Disclosure and Description of Any Significant Event

a. Will Start Statute of Limitations Running b. Beneficiary Consent to Trust Strategy With Full Knowledge of All

Facts and Rights Can Block Later Claim

7. Remember Beneficiaries Are Not Your Clients

8. Avoid Constant Trust Officer Turnover

9. Do Not Favor Income Beneficiaries Over Remaindermen

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XI. Trust Process

A. Trustee Decision Making:

1. Be Consistent

a. Helps Avoid Claims of Favoritism or Abuse of Your Trustee Discretion

2. Avoid Indecision – Ignored Problems Don’t Go Away

3. Avoid Prolonged Decision-Making Process That Requires Multiple Committee Reviews and Approvals

4. Document Decisions and Their Disclosures and Explanation to Beneficiaries

B. Trust Review Process:

1. When Problems or Issues Arise, Consult Colleagues, Supervisors or In-House Counsel As Needed

2. Follow Bank’s Policies and Procedures

a. Document Your Compliance

3. Regularly Track/Monitor Trust Assets

a. Require Regular Reports on Their Status, Activity and Any Potential Problems

4. Remember – You Do Not Have “Absolute” or “Total” Discretion

XII. Trust Recordkeeping

A. Must Maintain Good Records

1. Need to Provide Adequate Accountings

2. Need to Explain/Defend Prior Decisions or Distributions

B. Avoid These Problems As These Court Decisions Illustrate:

1. “The Trustee cannot argue that its own inability to preserve its own records (or those of its predecessors) for [these] Trusts of such high value forecloses the ability of the Objectants to challenge how those Trusts were administered. This argument is contrary to well-settled case law that a trustee must maintain accurate records. The records were insufficient. [T]he Portfolio manager testified that “there was very little paperwork that came with the trusts” when he inherited them in 1997. Also, many of the internal review records that were present were clearly never completed in the first instance, with entire pages left blank and unanswered.”

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2. “The Bank has produced inaccurate and incomplete records for the Trust and has not produced accounting records prior to 1998. These accounting deficiencies fail to track the changes in the value in the Trust over time and do not fully identify the costs associated with the [investment]. The Bank’s records do not justify the fees charged and/or refunded.

The Bank owed a fiduciary duty to maintain proper Trust records. A trustee is bound to keep clear, distinct, and accurate accounts. The Bank breached its fiduciary duty to maintain proper trust records as demonstrated by its inability to produce accounting information for the period of October 11, 1955 to January 1, 1998 … The Bank’s accounting is incomplete and inadequate.”

XIII. Don’t Write E-Mails That Will Later Haunt You and Your Employer

A. Complaint, SEC v. Davis, No. 14 CV 1528 (S.D.N.Y. Mar. 6, 2014) (accusing Dewey & LeBouef LLP’s Chairman, Executive Director, Chief Financial Officer, Director of Finance and Controller of misconduct).

1. December 31, 2008 email from the CFO to the Executive Director about what he did in the year-end effort: “Don’t even ask – you don’t want to know.”

2. June 27, 2009 email from the CFO to the Director of Finance, noting there will be a new auditor, “I assume you [k]new this but just in case. Can you find another clueless auditor for next year?” to which the Director of Finance responded: “That’s the plan. Worked perfect this year.”

3. May 28, 2009 schedule prepared by the Director of Finance and sent to the CFO, which included a $7,500,700 reduction entitled “Accounting Tricks.”

4. November 10, 2009 e-mail from the CFO to the Chairman, Executive Director, COO and Director of Finance: “Keep in mind though that at these levels we will not have the cash to pay the partners by Jan. 31 since $25M is fake income.”

5. December 4, 2008 e-mail from the CFO to the COO commenting on January 2009 bills: “I don’t know anything about [the contracts] and I don’t want to cook the books anymore. We need to stop doing that.”

B. Here’s Another Example From a Recent Case:

Bank paid all net income from trust to only one of 17 beneficiaries from 1970 onward and ignored means test requirement of trust for income distributions. In 1998, new trust officer assigned to administer the trust reviewed how the bank had handled the issue of income distribution from the trust.

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C. This trust officer described this situation in an internal memorandum as

“a debacle … well documented in the file”

but then said

“It is best to leave this issue as is.”

XIV. Due Diligence Post-Merger and Acquisition

A. Illustrations:

1. “Upon several mergers and consolidations, … Bank is the successor to the original Trustee.”

2. [The Bank] became the corporate co-trustee through a series of bank acquisitions and mergers.

3. Through a series of mergers, the current corporate trustee is now … Bank, N.A., as the successor to the … Trust Company.

4. … served as trustee during his lifetime and named … Bank the successor trustee. … Bank, formerly …, later became … Bank. Defendant-appellee … Bank is the successor-in-interest to [these banks].

5. The … Trust named as trustee … Bank & Trust Company (…). Appellant … is the successor-in-interest to ….

XV. Checklist for Post-Merger/Acquisition Trust Review

A. Establish Review Threshold Amounts and Significant Risk Factors. Then:

1. Review the trust documents

2. Review All Trust Assets Including Miscellaneous Assets

3. Review any pending litigation

4. Review all pending audits and disputes with IRS

5. Review all income, gift and estate tax returns for trusts and estates

6. Review all recent bank examiners’ reports

7. Determine all possible threats from beneficiaries and others

8. Review all existing relationships with legal counsel for different trusts and estates

XVI. Investment Diversification - A Litigation Magnet

A. Trustee In Trouble For Failure to Diversify:

1. Example No. 1:

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“However, testimony demonstrated a pattern of negligence within the institution requiring no special or additional evidence to identify. On numerous occasions, the Trustee’s employees reviewed the highly concentrated holdings of the subject Trusts, recognized the need to diversify, and then failed to follow any cohesive plan for divestiture. Any sales of [the] stock that had occurred were simply due to the Trustee “needing cash to pay expenses.” The evidence demonstrates that the Trustee did not meet its own internal guidelines, and when the sporadic and cursory internal reviews of the Trust holdings did occur, the Trustee did not act upon its own recommendations.”

2. Example No. 2:

“ … at no time during the administration of the trust did the Bank formulate any investment plan, let alone establish a plan to diversify its concentration of [this stock]. The Bank acted contrary to its internal policies to restrict its holding of any one stock to certain circumstances, none of which were presented here. The Bank failed to consider the best interests of the persons interested in the trust. The proof establishes that the Bank paid limited attention to the needs of the income beneficiary and virtually no attention to the remainder interests. The record is devoid of any proof that the Bank was proactive by assessing the volatility resulting from the concentration of [this stock] and the benefit to selling and diversifying the portfolio, obtaining [Beneficiary’s] written consent to retaining [the] stock, ascertaining the tax consequences, if any, to [Beneficiary] and determining whether the concentration jeopardized the remainder interest. Notably absent here is any proof that the Bank considered the increased risk to the trust portfolio by its continued concentration of one security in the portfolio. The record here establishes that the Bank: 1) failed to undertake a formal analysis of the trust by creating an investment plan; and 2) failed to conduct more than a superficial review of its holding of [these] shares and consider alternative investments.”

XVII. Trustee In Trouble For Diversifying

“The Retention Provision found in Article II, ¶ 2 of the Trust specifically authorizes retention of the original stockholdings, absent ‘unusual circumstances.’ While the term ‘unusual circumstances’ is not defined in the Trust terms, the Court finds that the Bank’s recommendation to diversify assets does not constitute an unusual circumstance. A request by an income beneficiary to increase payments is also not an unusual circumstance justifying the deviation from the intent of the Retention Provision in the Trust.

The Bank breached its fiduciary duty to comply with the terms of the Trust by selling the Trust’s … stock in 1999. The terms of the Trust “specifically recommend that, except for unusual circumstances,” the trustees retain the stocks originally placed in the Trust,

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regardless of whether or not such retention may appear to offend against what might ordinarily be considered a sound trust investment practice and the usual principles of investment diversification.” Neither [the beneficiary’s] requests for additional income, nor the Bank’s desire to diversify the Trust investments, constituted an unusual circumstance, as intended by the … as grantors of the Trust. There was no “unusual circumstance” justifying the sale of the …. stock, nor did the Bank make an adequate inquiry or determination that an “unusual circumstance” existed.”

In re Burford, 2012 WL 6777389 (Trial Order) (Okl.Dist. Oct. 9, 2012)

XVIII. Investment Diversification - A Litigation Magnet A. Successful Trustee Decision Not to Diversify:

“[Bank] made a reasonable determination that it was in the interests of the beneficiaries not to diversify the stock. First, [Bank] considered the liquidity of stock in making its decision not to diversify. … Several experienced trust officers from [Bank] testified that, because … is a closely held corporation, there was no market for its stock and, as a result, it would only be possible to sell the stock at a speculative price. The stock did not attract buyers; in fact … [the company] itself was not interested in purchasing the stock, except in small quantities at less than book value. Representatives from [Bank] held meetings with various financial advisors, including investment bankers and brokerage houses, and determined that a fair price for the stock could only be obtained via a sale of the entire company.

Additionally, [Bank] determined not to diversify upon consideration of other factors, such as the general economic situation of the trust assets, the expected tax consequences of investment decisions and the needs of the beneficiaries. [Bank] regularly reviewed the financial condition of the trusts’ assets based on a variety of internal reports and audits. As to tax consequences, [Bank] assessed that the … assets incurred a low tax cost. Compared to the high capital gains taxes that would result from a sale of the stock, [Bank] determined that the retention of the stock was the most advantageous means of maintaining the trust.

Finally, [Bank] concluded that the needs of the beneficiaries militated against diversification. The stock paid out considerable dividends such that selling the shares at a discounted price, for the sake of diversification, may have been imprudent. More importantly, there is an indication that the settlors of the trust wanted the ownership of … to remain in the family and the trusts were used as vehicles to achieve such result. [Bank] partially based its determination not to diversify on the family nature of the corporation, a material consideration.”

XIX. Remedial Measures to Address Diversification Issues

A. Amend the Instrument

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1. Agreement of Beneficiaries/Letters of Retention. All beneficiaries sign a written agreement or letter that resolves any diversification issue or question.

a. Can all potential beneficiaries be found? b. Is there virtual representation in governing state?

B. Indemnification Agreement. Beneficiaries indemnify trustee on diversification

issues.

C. Exculpatory/Exoneration Provisions in Trust –

1. E.g., Trustee’s Liability Limited to Acts of Fraud, Gross Negligence, or Willful Misconduct.

2. Not allowed or limited in certain states like New York.

D. Creation of A Directed Trustee Arrangement. Trust instrument, court order or state statute authorizes a third party to direct the action of the trustee and protects trustee from liability for following those directions.

E. Attorney’s Opinion. Creates advice of counsel defense.

F. Court Order. Obtain a court order through a suit for advice and guidance that protects the trustee’s retention of a certain asset and/or relieves the trustee from any duty to diversify.

G. Resignation. A trustee’s resignation is the last option to consider, but resignation may be the final effective means of escaping future liability.

XX. Diversification Success Stories

A. “The Trust provides in its own terms that [Trustee] 1) may maintain the initially invested securities, 2) had no duty to diversify and 3) would only be liable for willful misconduct. These three provisions further insulate him from liability for the decline in the stocks during 2009 and 2010. Each provision reinforces the other and demonstrates an intent that [Trustee] could maintain the securities as they were without subjecting himself to any potential liability.”

Tyler v. Tyler, 2013 Conn. Super. LEXIS 1901 (Conn. Super. Ct. Aug. 22, 2013)

B. Beneficiary signed LORs approving the Trust’s retention of [Bank] stock in 2004, 2005, and 2007. Beneficiary signed them each as a beneficiary and signed the 2007 LOR additionally on behalf of his father, pursuant to a durable power of attorney. Beneficiary’s signature on these letters was significant because a beneficiary can authorize a trustee to engage in an otherwise prohibited transaction.

W.A.K. v. Wachovia Bank, N.A., 2010 U.S. Dist. LEXIS 72289 (E.D.Va. July 19, 2010)

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C. In his will, [Testator] expressed a desire that the Trust retain [the] stock, and he provided the trustees with the authority to

Hold and retain any bonds or shares of stock or other securities or other properties held or owned by me at my death, if in their discretion they shall deem it prudent and for the best interest of my estate so to do, notwithstanding the fact that the retention of such investments might, except for this express direction, be in violation of the laws of this State governing trust investments. The probate court properly determined that this language creates a “safe harbor” protecting the Bank “from the diversification requirement that ordinarily would be deemed prudent.” In Re Wege Trust, 2008 Mich. App. LEXIS 1259 (Mich. Ct. App. June 17, 2008)

XXI. Trust Termination

A. Can Arise From:

B. Trustee Removal

C. Trustee’s Resignation

D. Trust Ending By Its Terms

E. Trust Assets Exhausted

XXII. Trust Termination - What Do You Want? A. Approval of Accounts

B. Full Releases

1. From All Beneficiaries

a. How Do You Handle Children and Unborn Heirs? b. Is there virtual representation in governing state?

2. From Successor Trustee

C. Indemnification From Future Liability if Possible

D. Agreement on Transfer of Trust Assets and Records

E. Payment of Trustee’s Fees and Attorneys’ Fees

F. To Avoid Court Involvement If Possible

XXIII. ADR Alternatives - Arbitration A. Arbitration Clause In George Washington’s Will:

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That all disputes (if unhappily they should arise), shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chosen by the disputants, each having the choice of one, and the third by those two – which three men thus chosen shall, unfettered by law or legal construction, declare their sense of the Testator’s intention; and such decision is, to all intents and purposes, to be as binding as if they had been given in the Supreme Court of the United States.

B. Last Will and Testament of George Washington, July 9, 1799, as filed with the Circuit Court for Fairfax County, Fairfax, Virginia.

C. Possible Benefits

1. Can Take Less Time Than Litigation 2. Can Be Less Costly Than Litigation 3. Typically Results in Decision That Binds All Parties

D. Potential Problems:

1. Can Be More Time-Consuming and Expensive Than Anticipated

2. So far only two states – Florida and Arizona – have specific statutes authorizing and enforcing arbitration clauses in trust.

3. Arbitration provisions in other states will only be enforceable if contained in “written agreement” or “contract”

a. Most courts have ruled that because trust is not contract, arbitration provision not enforceable

4. Some courts have ruled that where beneficiary is accepting some of the benefits of trust, beneficiary must accept everything in trust, including arbitration requirement.

XXIV. ADR Alternatives - Mediation A. “Discourage litigation. Persuade your neighbors to compromise whenever they

can. Point out to them how the nominal winner is often a real loser – in fees, expenses and wasted time.”

Abraham Lincoln’s Notes For A Law Lecture, July, 1850, taken from the Collected Works of Abraham Lincoln (edited by Roy Basler, et al. (1953).

B. Benefits:

1. Much Faster Process 2. Significantly Less Expensive

13

3. Completely Confidential Process

a. No Public Filings

4. Neutral Third Party Serves as Mediator 5. Parties Involved Control The Process With Assistance of Neutral Mediator 6. Resolution of Dispute Comes Only Through Voluntary Agreement of All

Participants 7. Can Include Mediation Requirement in Trust

XXV. ADR Alternatives - Use of Trust Protector

A. Trust Can Designate Someone As Trust Protector

B. Trust Can Require Submissions of Disputes to Binding Decision of Trust Protector

XXVI. Bank Pay v. Trust Pay - Requirements For Recovery of Trustee’s Attorneys’ Fees

A. The requirement for recovery of attorney’s fees in trust and estate matters is a determination that they are reasonable:

“A trustee can properly incur and pay expenses that are reasonable in amount and appropriate to the purposes and circumstances of the trust and to the experience, skills, responsibilities, and other circumstances of the trustee.”

Restatement (Third) of Trusts § 88.

B. “In a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney’s fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.”

Uniform Trust Code § 1004 (2010).

C. “In determining what amount is reasonable, the Court must first determine a lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate… [T]welve “Johnson” factors … guide a district court in determining a reasonable number of hours and rate:

(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney’s opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional

14

relationship between attorney and client; and (12) attorney’s fees awards in similar cases.” W.A.K. v. Wachovia Bank, N.A., 2010 U.S. Dist. LEXIS 79074 (E.D.Va. Aug. 5, 2010)

D. Additional Steps in Attorneys’ Fees Analysis

1. Subtract Fees for Hours Spent on Unsuccessful Claims and Award

Percentage of Remaining Fees Based on Trustee’s Degree of Success.

2. Court Must Make Determination That Fee Application Reflects Exercise of Billing Judgment and Discretion

XXVII. Trustee’s Legal Fees Assessed Against Beneficiary’s Trust Share

A. Court has power to assess trustee’s legal fees against a beneficiary’s portion of trust when beneficiary has engaged in burdensome and unnecessary litigation.

B. See, Larkin v. Wells Fargo Bank, N.A., 2014 Minn. App. Unpub LEXIS 1077

(Minn. Ct. App. Oct. 6, 2014) (trial court properly ordered trustee’s legal fees be charged against portion of trust of beneficiary who had “… engaged in vexatious and burdensome litigation.”)

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2016 ABA Trust and Estate Planning Briefing Series

The American Bankers Association announces the 2016 Trust and Estate Planning Briefing Series. Our featured speakers, Charles D. Fox IV, partner, McGuireWoods LLP and Thomas W. Abendroth, partner, Schiff Hardin LLP are nationally-recognized trust and estate attorneys and tenured teachers from the ABA Trust Schools. They will provide you and your staff with critical information on estate planning and trust administration topics. This series provides you with an excellent business development opportunity; invite outside counsel to attend these informative programs at your location. Make the most of this high-impact content! Save 10% when you spend $400 or more on 2016 Trust Series Briefings or recordings. Use the promo code LISTEN2LEARN.

February 4, 2016

Life Insurance in a 21st Century Estate Plan2.5 CRSP, 2.5 CTFA (Fin. Plan.), 2.0 CPEs for CPAs (Finance), 2.0 CFP credits

This briefing will help listeners understand the role of life insurance in current estate plans. Topics will include:

• Reasons for having Life Insurance• Types of Life Insurance and Specially Designed Insurance Products• Who Can Be Insured• Private Placement Life Insurance• Estate Tax Planning with Life Insurance• Premium Financing

March 3, 2016

Uniform Fiduciary Access to Digital Assets Act (UFADAA) and Digital Assets2.5 CTFA (FID), 2.0 CPEs for CPAs (Regulatory Ethics), 2.0 CFP credits

The current uniform law proposals, and planning options under current law will be reviewed during this program.

• Uncertain Current Federal and State Legislative Environment• Different Approaches of Tech Industries and Estate, Trust, and Financial

Planning Professionals• Uniform Fiduciary Access to Digital Assets Act• Personal Expectations Afterlife and Choices Act• Provisions in Wills, Trusts, and Powers of Attorney to Deal with Digital Assets

Register today and/or purchase the recordings!aba.com/TrustBriefings | 1-800-BANKERS

Charles D. Fox IV Thomas W. Abendroth

April 7, 2016

The New Paradigm in Trusts and Estates Valuation 2.5 CISP, 2.5 CRSP, 2.5 CTFA (TAX), 2.0 CPEs for CPAs (Regulatory Ethics), 2.0 CFP credits

This briefing will discuss the new regulations and implications on estate planning. Topics to be discussed include:

• Legal and Economic Basis for Valuation Discounts• Past IRS Attempts to Regulate Discounts• Section 2704 Rules and Application to Family LPs and LLCs• New Valuation Regulations• Planning Under the New Regulations

May 5, 2016

Fiduciary Litigation Roundtable2.5 CISP, 2.5 CRSP, 2.5 CTFA (FID), 2.0 CPEs for CPAs (Business Law), 2.0 CFP credits

A panel of attorneys will discuss current trends in fiduciary litigation and how to minimize a trustee’s exposure. Topics will include:

• Current fiduciary litigation cases • Diversification and Other Investment Disputes• Keeping Beneficiaries Informed• Decanting• Closely-Held Assets in Trust

June 2, 2016

Charitable Tales from the Crypt2.5 CISP, 2.5 CTFA (TAX), 2.0 CPEs for CPAs (Taxes), 2.0 CFP credits

Frequent misuse of the charitable deduction, and the most recent errors made in charitable planning will be discussed during this briefing. Topics will include:

• Qualifying for the Estate Tax Charitable Deduction• Qualifying for the Income Tax Charitable Deduction• Avoiding the Imposition of Capital Gains on a

Charitable Foundation• Problems with Private Foundations• Challenges with Charitable Remainder Trusts

September 8, 2016

Issues with Art and Other Collectibles in the Administration of Trusts and Estates2.5 CTFA (INV), 2.0 CPEs for CPAs (Finance), 2.0 CFP credits

Best practices in dealing with these unique assets and protecting their value in the trust and estate administration context will be discussed. Topics will include:

• Confusing Legal Environment of Local, State, Federal and International Rules• Verifying Authenticity and Good Title• Limitations on Sales of Art such as Endangered Species Restrictions and Cultural

Heritage Limitations• Rights of Artists• Ways to Sell Art• Securing Art• Special Considerations with Collectibles such as Guns

October 6, 2016

Are You a Fiduciary?2.5 CISP, 2.5 CRSP, 2.5 CSOP, 2.5 CTFA (FID), 2.0 CPEs for CPAs (Administrative Practice), 2.0 CFP credits

This session will discuss some of the major issues surrounding the fiduciary role in wealth management. Topics will include:

• Fiduciary Role in Trusts• Non-Trustee Fiduciary Roles in Trusts• Fiduciary Roles under ERISA and New DOL Proposed Rules• Fiduciary Roles for Investment Advisers Outside of ERISA

November 3, 2016

Twenty Steps to Avoid Fiduciary Litigation2.5 CISP, 2.5 CRSP, 2.5 CSOP, 2.5 CTFA (ETH), 2.0 CPEs for CPAs (Administrative Practice), 2.0 CFP credits Best practices for minimizing claims will be discussed. Topics will include:

• Duty of Loyalty• Steps to Take in Opening Relationships• Steps to Take when Taking Over Another Trust Department• Communications with Beneficiaries• Fees• Accountings• Seeking Court Approval

December 1, 2016

Recent Developments in Estate and Trust Administration2.5 CISP, 2.5 CTFA (TAX), 2.0 CPEs for CPAs (Taxes), 2.0 CFP credits

A review of recent legislation, regulatory developments, cases, and public and private rulings in the estate, gift, generation-skipping tax, fiduciary income tax, and charitable giving areas will be provided. Some of the subjects to be discussed include:

• Marital Deduction Planning• Portability• Possible changes in the Estate Tax Laws• Valuation Issues• Gifts• The Availability of Discounts • Charitable Planning• Post Mortem Planning• The Generation-Skipping Tax• Asset Protection• Insurance• Fiduciary Income Tax

2016 ABA Trust and Estate Planning Briefing Series

American Bankers Association is registered with the National Association of State Boards of Accountancy (NASBA) as a sponsor of continuing professional education on the National Registry of CPE Sponsors. State boards of accountancy have final authority on the acceptance of individual courses for CPE credit. Complaints regarding registered sponsors may be submitted to the National Registry of CPE Sponsors through its website: learningmarket.org. In order to provide listeners with timely information, the presenters reserve the right to alter the content or emphasis of the programs.

Register today and/or purchase the recordings!aba.com/TrustBriefings | 1-800-BANKERS

2017 Trust and Estate Planning Briefing/Webcast Series The American Bankers Association announces the 2017 Trust and Estate Planning Briefing Series. Our featured speakers, Thomas W. Abendroth, partner, Schiff Hardin LLP and Charles D. Fox IV, partner, McGuireWoods LLP are nationally-recognized trust and estate attorneys and tenured teachers from the ABA Trust Schools. They will provide you and your staff with critical information on estate planning and trust administration topics. This series provides you with an excellent business development opportunity; invite outside counsel to attend these informative programs at your location.

Reserve 1:00 – 3:00 p.m. ET on these dates In order to provide listeners with timely information, the presenters reserve the right to alter the content or emphasis of the programs.

Current State of Asset Protection – February 2, 2017 2.5 CTFA (FP); 2.5 CISP; 2.5 CRSP; 2.0 CPEs for CPAs (Taxes); 2.0 CFP Our clients continue to focus, with justification, on protection of their wealth from liabilities arising out of business dealings and litigation. This briefing will provide an update on developments and the most appropriate planning techniques to use for asset protection. Topics to be discussed are: Different types of protection Joint tenancy and tenancy by the entireties Third party gifts and trusts State exemptions Insurance Retirement plans and IRAs Fraudulent conveyances Family limited partnerships and limited liability

companies Offshore and domestic asset protection trusts

The Section 2704 Valuation Rules and their Impact on Advanced Estate Planning Techniques – March 2, 2017 2.5 CTFA (TAX); 2.5 CISP; 2.5 CRSP; 2.0 CPEs for CPAs (Taxes); 2.0 CFP The currently proposed valuation regulations under Section 2704 could have a significant impact on the economic and tax benefits of a variety of estate planning techniques. This program will discuss those techniques that could be most impacted, and the general options available for transferring wealth in an advantageous way. Topics to be discussed include: Annual exclusion gifts and applicable exclusion gifts and

inflation adjustments to the amounts Installment sales GRATs Use of limited partnerships and LLCs as family

investment vehicles Partnership and LLC freezes Portability Planning versus A / B planning at the first

spouse’s death Split interest charitable gifts Loans

Trustee Liability for Investments – A Review of the Current State of the Prudent Investor Rule; Delegation; and Direction – April 6, 2017 2.5 CTFA (INV); 2.0 CPEs for CPAs (Regulatory Ethics); 2.0 CFP One of the most significant areas of potential fiduciary liability will be discussed in this session. The fiduciary standards applicable to trustees regarding investments and the ability to avoid liability by serving a more limited role will be the focus of this briefing. Prudent Investor Rule Diversification Waiver of Diversification Passive versus active management Delegation of investment responsibility The do’s and don’ts of being a directed trustee Trust protectors and trust directors Fiduciary Litigation Roundtable – May 4, 2017 2.5 CTFA (FID); 2.5 CRSP; 2.0 CPEs for CPAs (Business Law); 2.0 CFP A panel of attorneys will discuss current trends in trust disputes and fiduciary litigation, and steps for minimizing a trustee’s exposure to liability. Topics will include: Defenses and limitations Trustee compensation Jurisdiction and standing Construction and modification Trust distributions Settlements and arbitration Trust investments Power of attorney Planning in Illiquid Estates – June 1, 2017 2.5 CTFA (FP); 2.5 CISP; 2.5 CRSP; 2.0 CPEs for CPAs (Taxes); 2.0 CFP An estate with a large interest in closely-held business or other illiquid asset provides numerous challenges from a planning and tax payment standpoint. This briefing will review the pre-death and post-death planning options available to help avoid a crisis. Topics to be covered include:

Closely held assets and illiquidity Impact of limits on valuation discounts Lifetime planning to fund estate tax payments Deferral of payment of estate tax Post-death loan options Section 303 stock redemptions Funding marital and charitable trusts with

illiquid assets Charitable issues

Retirement Benefits – September 7, 2017 2.5 CTFA (FP); 2.5 CISP; 2.5 CRSP; 2.0 CPEs for CPAs (Taxes); 2.0 CFP The often complex rules for payments of benefits from tax advantaged accounts, and planning options available will be reviewed during this session. Minimum distributions Payments elections after participant’s death Corrective actions after participant’s death Trusts as beneficiaries Qualifying for the marital deduction Advantages and disadvantages of different beneficiaries Inherited IRAs Gifts to charity A New Look at Distribution Standards – October 5, 2017 2.5 CTFA (FP); 2.5 CISP; 2.5 CRSP; 2.0 CPEs for CPAs (Admin Practice); 2.0 CFP Both trustees and beneficiaries struggle with applying the distributions standards that exist in documents. Our speakers will discuss the current law on distributions and the tax implications of standards. Topics to be included: Different distribution standards and what do they mean Tax consequences of distribution standards Ascertainable versus non-ascertainable standards Case studies of distribution standards

Planning for the Elderly. What Can and Should Be Done for an Increasingly Aging Population – November 2, 2017 2.5 CTFA (FP); 2.0 CPEs for CPAs (Behavioral Ethics); 2.0 CFP This session will provide a fresh look at the challenges of planning for and protecting elderly clients. Topics will include: Increasing importance of planning for elderly Avoiding abuse of elderly How to recognize undue influence Use of power of attorney and medical directives Importance of revocable trusts Planning when the client is incompetent Medicare and Medicaid planning Social Security planning

Recent Developments in Estate and Trust Administration – December 7, 2017 2.5 CTFA (TAX); 2.5 CISP; 2.5 CRSP; 2.0 CPEs for CPAs (Taxes); 2.0 CFP A review of recent legislation, regulatory developments, cases and rulings in the estate, gift, generation-skipping tax,

fiduciary income tax, and charitable giving areas will be provided. Some of the subjects to be discussed include: Legislative and regulatory developments Gifts Valuation including the 2704 regulations Generation-skipping planning Life insurance, including split-dollar plans Charitable planning Tax Liens State Death Taxes

Who Should Attend? Trust Officers Estate Planners Trust Counsel Trust Dept. Managers Wealth Managers

Private Bankers Trust Tax Professionals Financial Planners CTFAs, CISPs, CRSPs,

CPAs and CFPs

Registration/Site License Fee PER Briefing Purchased ABA/ICB Member/Service Member: $265

Non-Member: $395

These ABA Briefings include streaming audio over the Internet, where an unlimited number of listeners can participate at one location. Audio over the telephone can be provided as an alternative. Any transmission, retransmission or publishing of these briefings is strictly prohibited. Register Today! Register online at www.aba.com/trustbriefings or call 1-800-BANKERS (1-800-226-5377).

Need Continuing Education Credits? The Institute of Certified Bankers (ICB) has approved each of the 2017 programs listed for a variety of continuing education credits. These programs are also eligible for CPE credits for CPAs and have been approved by the Certified Financial Planners (CFP) Board for continuing education credits. This information is printed after the title of each | of the programs. Questions? Contact Linda Shepard at [email protected]. Or, call 1-800-BANKERS (1-800-226-5377).

American Bankers Association is registered with the National Association of State Boards of Accountancy (NASBA) as a sponsor of continuing professional educational on the National Registry of CPE Sponsors. State boards of accountancy have final authority on the acceptance of individual courses for CPE credit. Complaints regarding registered sponsors may be submitted to the National Registry of CPE Sponsors through its website: learningmarket.org.

http://www.aba.com/trustbriefings


Wealth Advisory and Personal Trust SeriesThe 2016 edition of ABA’s Wealth Advisory and Personal Trust Series has been updated to reflect changes in regs that impact the trust industry. Each workbook is a comprehensive resource on estate planning, transfer tax, fiduciary liability, investment and retirement planning solutions. The workbooks follow and reinforce the knowledge areas tested on the Certified Trust and Financial Advisor (CTFA) Certification exam.

Titles include:Fiduciary and Trust Activities WorkbookFinancial Planning WorkbookTax Law and Tax Planning WorkbookInvestment Management Workbook

Purchase the series or individual workbooks; available in printed and electronic formats.

Each workbook: $165 Member/$225 NonmemberComplete series: $575 Member/$775 Nonmember

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