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September 27, 2023

New York Law Journal: "Disclosure Considerations for Fiduciary-Controlled Business Interests: Protecting and Obtaining Confidential Information"

Jen Flannery, Trusts & Estates Practice Area co-chair, and Teresa Bennett, partner, had their “Disclosure Considerations for Fiduciary-Controlled Business Interests: Protecting and Obtaining Confidential Information” analysis article published in New York Law Journal. The article explores “issues when dealing with business interests held by a fiduciary of an estate or trust” and provides insight regarding “how to protect confidential business information and how to obtain confidential business information if you are a beneficiary.” 

As baby boomers begin to distribute their assets to their children, “it has become increasingly important to address the needs of those owning family businesses with proper and effective estate and business succession planning, particularly where there is a controlling interest involved.” 

The article states: 

Although not foolproof, protections can be put in place to minimize the circumstances under which confidential or proprietary information is disclosed by (1) being abundantly clear about the settlor’s intent in drafting the trust instrument; (2) appointing a trusted individual as trustee, with fiduciary duties to the business; (3) limiting the interest conveyed to the trust to something less than a controlling interest; (4) providing separate, independent counsel to the trustee-director in the event of conflicting interests; and (5) providing a robust summary of pertinent non-confidential and non-proprietary information about the business to the trust’s beneficiaries, consistent with the company’s communication policy, to avoid a court-ordered accounting.

New York Law Journal subscribers can read the full article here.
 

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