Probate Litigation Attorneys
Franklin Malemud authored "Hey Fiduciaries, the Ohio Trust Code is Still Your Friend" in the November/December 2019 Issue of the Probate Law Journal of Ohio.
Reprinted from Probate Law Journal of Ohio, with permission of Thomson Reuters. Copyright © 2017.
Years after the initial enactment of the Ohio Trust Code and articles published in this journal1 the Tenth District Ohio Court of Appeals in Zook, et al. v. JP Morgan Chase Bank National Association, et al., 10th Dist. No. 15AP-751, 2017-Ohio-838, conﬁrmed the viability of options under the Trust Code that afford trustees a path to ﬁnality in trust administration not subject to continuing court jurisdiction. Speciﬁcally, the Zook court conﬁrmed what readers of this journal and those familiar with the Trust Code already “know”:
Can a disinherited person force the production of information necessary to substantiate the efforts required to pursue a challenge to a Will, beneficiary designation, or Trust?
Isolation and manipulation of a loved one by those who are intent on deriving benefits from an estate are frequent realities in estate litigation cases. Undue influence, the process by which a person’s mind is subjugated so that the decision-making is actually that of the perpetrator, is almost always done behind closed doors. The byproduct of isolation and conduct perpetrated in the dark is lack of information. Family members are left with only questions and no answers.
Ten years after the first enactment of the Ohio Trust Code, in Zook, et al. v. JP Morgan Chase Bank National Association, et al., 10th Dist. No. 15AP-751, 2017-Ohio-838, the Tenth District Ohio Court of Appeals gave insight into protections under the Ohio Trust Code afforded trustees against beneficiary claims and a provided a roadmap for a beneficiary to challenge such protection.
Following up on the recent blog post on basic principles of trust reporting, the Fifth District Court of Appeals released a timely analysis involving a trustee’s failure to account and an award of attorney fees against the trustee for their breach of duty in McHenry v. McHenry, (5th Dist.), 2017-Ohio 1534. The decision, originating out of the Stark County Probate Court is significant for two reasons: (1) it provides a thorough analysis of a trustee’s duty to account even in the face of trust language relieving the trustee of his duty to account; and (2) the court awarded attorney fees in excess of the value of the compensatory damages, pursuant to its authority under R.C. 5810.04.
You are a trust beneficiary.
You have no idea what is in the trust, what has been spent out of the trust, and what will be spent out of the trust.
Must the trustee open his books to you? What rights do you have to receive this information?