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Arizona Woman Given Power To Amend Trust, Fire Trustees

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MAY 25, 1998 VOLUME 5, NUMBER 47

Living Trusts are a popular estate planning device. Frequently seniors choose to transfer assets to living trusts to avoid probate court and the problems associated with the probate process, including public disclosure of assets, expenses of administration and the possibility of outside control of personal matters.

In addition, it is often easier to take advantage of simple estate tax reduction methods by using a living trust than by simply executing wills. This is particularly true for married couples, who often transfer assets into a living trust which divides into two shares on the first death. Typically, one of those shares becomes a separate, irrevocable trust, though it often pays all of its income to the surviving spouse for his or her life. Still, in order to gain the maximum estate tax benefit, it is necessary to accept some limitations on the use of some of a couple’s assets on the first death.

Of course, most people recognize that a living trust is not a guarantee that courts will be avoided. Even well-made plans sometimes go awry. Take, for example, the estate plan of Robert and Lillian Wilcox, who lived in Prescott, Arizona.

Mr. and Mrs. Wilcox owned a majority of the stock of a development company, Prescott Properties, Inc. In an attempt to minimize estate taxes and avoid probate, they transferred their interest in Prescott Properties into a living trust which provided that it would divide into two shares on the first death. To help ensure the continued survival of the business, they named three business associates as co-trustees (with themselves) over the trust’s assets. Then, in mid-1995, Robert Wilcox died. He was replaced as one of the trustees by another business associate.

Less than a year later, Mrs. Wilcox became unhappy with her co-trustees’ management of the trust, and decided to amend the trust to make her son trustee. Because there was some ambiguity in the language of the trust (it was not clear whether she retained the power to change trustees), she decided that she would need to go to court to have the amendment ratified.

Not surprisingly, the remaining trustees took exception at Mrs. Wilcox’ decision to amend the trust. They objected to the proposed amendment, and settled in to fight her over the issue. In order to prevent them from managing the trust assets in the meantime, she filed a separate court action seeking to enjoin them from taking any action as trustees until resolution of her first lawsuit.

The local court held three days of hearings on Mrs. Wilcox’ requests, and ultimately agreed with her. The trust was amended, and the business associates were ordered not to take any action as trustees. They appealed both orders.

The Arizona Court of Appeals agreed with the lower court (and Mrs. Wilcox) on both counts. The appellate court dismissed arguments that the other beneficiaries of the trust (Mrs. Wilcox’ children, grandchildren and great-grandchildren) had not gotten sufficient notice of the proceedings, noting that the beneficiaries themselves had not objected. Other technical objections were also brushed aside, and Mrs. Wilcox was permitted to amend the trust and remove the business associates as trustees. Wilcox v. Ebarb, March 26, 1998.

Although Mrs. Wilcox ultimately prevailed, the irony is that she ended up in court twice and paying considerably more in legal fees and public exposure than would have been likely in a typical probate proceeding. Of course, most of that arises from the fact that she changed her mind about who she wanted to administer her (and her husband’s) estate, and the same problems might have arisen from the terms of a will if they had not executed a trust. Still, her story serves as a reminder that a living trust is not a panacea.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.