The Lawletter Vol 41, No 3

Matthew McDavitt, Senior Attorney, National Legal Research Group

     Most states now allow nonresident corporations, such as trust companies, to serve in fiduciary roles such as the personal representative of a decedent estate, trustee, or trust or as the conservator of a guardianship estate. However, various state statutes place varying requirements on such fiduciary roles, such as whether state certification is required by such out-of-state corporate fiduciaries, which fiduciary roles are available to trust companies, and whether an in-state agent must be designated for service.

     One frequent requirement placed upon nonresident companies seeking to serve in a fiduciary role is that of reciprocity: The out-of-state corporation is allowed only the powers and authority granted to nonresident fiduciaries in its state of incorporation. Thus, where a trust company seeks to serve in a fiduciary role in another state, it is imperative to know whether both the state of incorporation and the foreign jurisdiction are "reciprocity" states. The following is a chart compiling the citations of the statutory nonresident corporate fiduciary reciprocity provisions currently in force in the 25 states that possess them: 

The Lawletter Vol 40 No 6

Matt McDavitt, Senior Attorney, National Legal Research Group

     When distributing a probate estate, it is important to determine whether particular assets are tangible or intangible property where the will's language distributes these classes of property to different beneficiaries. While many assets may be sorted based upon common-sense principles, other assets present analytical difficulties. One such problematic asset is gold formed into bars, bullion, and coins. Some laymen would classify these precious metal assets as money, others as collectibles, and it is not intuitive whether such gold objects constitute tangible assets (such as a chair or a computer) or intangible assets (such as bank account deposits or stocks).

The Lawletter Vol 40 No 2

Matt McDavitt, Senior Attorney, National Legal Research Group

     One problematic issue regarding the administration of probate or intestate estates is that in which the property of mentally or physically incapacitated persons is found to have been significantly depleted through lifetime transfers in the period just prior to death. The Virginia Supreme Court recently addressed this problem, establishing that where such lifetime transfers benefit persons standing in a confidential relationship to the grantor, a rebuttable presumption of fraud arises so as to protect decedent estates from the depredations by third parties upon whom the decedent relied at the end of life.