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Mother’s Incapacity Does Not Force Trustee To Account

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Elisabeth Frudenfeld lives in California. In 1987, she established a revocable living trust. Nine years later, the California courts appointed a professional fiduciary as conservator to handle her affairs.

Ms. Frudenfeld’s trust was primarily designed to avoid the probate process, and so she retained the power to revoke it. In fact, though she is unlikely to ever regain the ability to sign a revocation or amendment, she could at least theoretically revoke the trust even now.

The trust established by Ms. Frudenfeld, like most revocable living trusts, requires that the trust’s assets be held for her benefit until her death, at which time any remaining assets must be divided among her children. In trust terms, that makes her children the “remainder” beneficiaries. Under general trust principles, such remainder beneficiaries are not entitled to any accounting or other information from the trustee.

In Ms. Frudenfeld’s case, however, circumstances have changed. Since she is incapacitated, and the court has appointed someone to protect her interests, one of her daughters reasoned that perhaps the rules should change to adapt to the changed circumstance.

Ms. Frudenfeld’s daughter Laurie Cook Johnson brought suit against the trustee (her sister Karla Kotyck) to try to force her to divulge the value and management of trust assets. Ms. Kotyck objected, arguing that only their mother is entitled to such account information.

The probate court decided that Ms. Johnson is not entitled to a trust accounting, and dismissed her petition. She appealed, and the California Court of Appeals affirmed the dismissal of her claim.

Ms. Johnson’s stated concern, as it happens, is not about her future inheritance, but about the professional fiduciary’s monitoring of her mother’s trust. She believes that the conservator may not be acting to prevent misuse or poor handling of trust assets by her sister, Ms. Kotyck. While the court has declined to give her direct access to trust information, it has reaffirmed that the conservator has not only the power to monitor the trust’s administration, but also a duty to do so.

A desire to avoid the conservatorship process is often one of the reasons a trust is established in the first place. The court in Ms. Frudenfeld’s case makes it clear that when a conservator has been appointed, the conservator has the duty to monitor the trustee and may later be liable to family members or other beneficiaries for failure to prevent mismanagement. It does not follow, though, that the ultimate beneficiaries can demand information just because the person establishing the trust has become incompetent. Johnson v. Kotyck, November 4, 1999.

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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.