By David Villano
By Jose D. Duran
By Michael E. Miller
By Allie Conti
By Kyle Swenson
By Luther Campbell
By Frank Owen
By Allie Conti
Phelps pointed out to Shupenko that the transfer he was requesting was anticipated and authorized by the Count's will: "To the extent that the assets of my estate are insufficient to fund the foregoing devises," the will stated, "I hereby exercise the Power of Appointment in the Marital Trust...to appoint that portion of the principal of said Trust to each of the foregoing beneficiaries, in an amount necessary to fully fund their respective specific devises."
On June 15, 1988, Phelps received an unexpected and worrisome response to his request. "There is no provision in the Will for the reimbursement by the Trust for any debts, administrative expenses or Estate taxes," AmeriFirst's Richard Jackson wrote.
While it was true that such expense reimbursements were not explicitly spelled out in the Count's will, it seemed clear that a wholesale transfer of funds was mandated. Upon dying, the Countess had given her husband ultimate authority over the Count Tassilo Szechenyi Trust fund; the Count had exercised that authority in his own will, setting forth the circumstances under which the assets of the trust would be used to help fund the bequests to his loved ones. Those circumstances now existed, and Phelps had been charged with the responsibility of making the will's mechanism work.
In principal, the wealth of the trust and the wealth of the estate were the same, possessions of the dead Count that were inextricably linked by both the Countess's and the Count's wills. And legally, as far as Phelps could see, there should be no problem merging the two holdings. Jackson disagreed. "The only way assets of the Trust could have been available for the payment of debts and expenses in the probate Estate and the payment of Estate taxes would have been to exercise the Power of Appointment so that the entire Trust would have been payable to the Estate," Jackson wrote. As it was, the banker said, trust funds could be used to pay only the "specific devises," or bequests, the Count had set forth in his will. Jackson contended that the language of the will prohibited using trust funds to pay the mounting debts of the estate. And without Jackson's consent as co-trustee, Phelps was powerless to do so.
The question of whether the Count's trust fund could simply be merged with his estate seems exactly the sort of sticky point a probate judge gets paid to clear up. But none ever did. Blocked by AmeriFirst from tapping the Count's trust fund, Phelps soon began selling off the Count's properties to pay estate debts and taxes. He would later acknowledge that these land sales - executed without the necessary permission from the probate court - were poor judgment. AmeriFirst, for its part, proceeded to use cash in the trust fund to pay itself administrative fees, and dole out thousands of dollars in legal expenses connected with the trust and estate proceedings.
More than three years after the controversy between Phelps and Jackson first developed, Szechenyi's former accountant would all but wring his hands in frustration in a Dade courtroom. "It appears to me that the trust should have taken the assets from the trust, brought them before the probate court and said, `Judge, administer this estate and tell me how I'm supposed to distribute my assets,'" Salver told Judge Newbold in August. "I see nothing more complicated than that.... I think the exercise of the power of appointment in the last will and testament dictates what should happen with these trust assets. But we have to make that determination. That hasn't happened."
At the time he received the letter from Jackson in June 1988, Phelps says he was immediately suspicious of the banker's arguments against transferring funds from the trust to the estate. It seemed to him that Jackson was using a garble of technicalities - and his position as corporate trustee of the Count Tassilo Szechenyi Trust - to obstruct the orderly execution of the Count's wishes.
Considering the rift with AmeriFirst that was suddenly emerging, Phelps was doubly glad to have retained the services of attorney Peter MacNamara. But that sense of relief would soon begin to erode.
Almost immediately, MacNamara wrote to Phelps with some good news: He had talked to Jackson at AmeriFirst and arranged a short-term loan from the Count Tassilo Szechenyi Trust to the dead aristocrat's estate checking account.
Although this did not resolve the larger question of whether the Count's will called for funds in the trust account to be moved to the estate checking account, it did take pressure off Phelps. Mortgage payments on the Miami house, Maine property taxes, and many other bills were either due or past due, and Phelps had begun to worry. He knew that failure to pay the bills, particularly the mortgage, could result in a domino effect of financial trouble that could tangle and slow the execution of the will.
Within a few days, on July 2, 1988, Phelps says MacNamara called him with his first piece of legal advice. The probate lawyer urged his client to appoint AmeriFirst Florida Trust Company to serve with Phelps as "co-personal representative" of the Count's estate. Phelps says the suggestion struck him as utterly bizarre. It was bad enough, in his mind, that AmeriFirst had partial control over the Count's trust fund, and appeared to be stalling disbursements to the beneficiaries by refusing to merge the trust funds into the estate account. Why in the world would Phelps want to give AmeriFirst authority over the estate as well?