Keeping Current—Probate

Prof. Gerry W. Beyer

Keeping Current—Probate offers a look at selected recent cases, tax rulings and regulations, literature, and legislation. The editors of Probate & Property welcome suggestions and contributions from readers.


DECANTING: Trustees are not entitled to fees and costs of defending decantings held to be improper. Trust beneficiaries sued to void co-trustees’ series of decantings of the trust and to remove the co-trustees. The former trustees moved for payment from the trust of fees and costs personally incurred in defending the decantings, and the successor trustees moved for reimbursement by the former trustees of costs the trust already paid. The circuit court denied the former trustees’ motion and granted the motion of the successor trustees. The New Hampshire Supreme Court affirmed in Hodges v. Johnson, No. 2019-0319, 2020 WL 5648573 (N.H. May 12, 2020), finding that the former trustees should have sought advice from independent counsel rather than relying on the attorney for the settlor, whose wishes were served by the decantings, and that the record supported the finding that they had not acted in good faith.

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