Every Spring, when the snowbirds have returned to New York, your lawblogger gets a rash of inquiries about trusts. Some folks are absolutely insistent but don’t really have a good explanation for this. I usually ask at this point which Florida clubhouse ran the program where they suddenly realized they must have a trust. An excellent article in Forbes Magazine will enlighten you and may answer your questions as to whether or not you should be trusting a trust. Start with a well-drawn Will. Then determine if you require a trust to meet your financial planning needs.
An article in today’s New York Times sheds some interesting light on powers of attorney and their sometimes unforeseen drawbacks. Your lawblogger thinks it is well worth a look.
The ABA Journal reports on the final failure of the Estate of Anna Nicole Smith to recover hundreds of millions of dollars from the estate of her late husband J. Howard Marshall. Marshall, a Texas oil billionaire died at 89, a year after his marriage to Smith who was then 26. Not only are Smith and Marshall long gone, but also Smith’s son E Pierce Smith passed away in 2006 after waging a war in bankruptcy court after Smith first lost in probate court in Texas. In dismissing the case –probably for the last time- Judge David O. Carter bemoaned the heavy cost of the protracted litigation upon the American taxpayer and compared the case to Bleak House, the Charles Dickens novel.After splashing across our headlines for the nearly twenty years, the case is finally at an end. Enough is Enough.
The Do It Yourself legal industry is flourishing with claims that you do not need a lawyer to get your affairs in order with a low-cost DIY will. Just input your credit card information, download the easy to use form, fill in the blank spaces and seal it in an envelope in anticipation of Judgment Day. $29.95 will get you the security of knowing that you have made your Will and have not had to lay out huge sums of money for an attorney.
One of the major features of the Surrogate’s Court is that it is a court of public record. Unfortunately, that can be one of its major drawbacks. Every document filed in every estate is available to anyone. If your grandfather (great grandfather) passed away here in the twenties, his Will together with lots of information about your family is there for all to see. Great if you are a history buff or looking for information about your ancestors but not so great if you would like to keep private stuff private. An example of this can be seen after the recent celebrity deaths of Philip Seymour Hoffman, Lou Reed and James Gandolfini. All of the minute details of their estate planning (or lack of same) are on public display.
In her last public interview in 1994, Jacqueline Kennedy Onassis stated that her most important accomplishment in life was to insure that her children loved each other. Your lawblogger has taken her words to heart over the years. As a litigator practicing in the field of contested matrimonials and contested estates, I can definitively state that nothing matches the intensity of an estate contest between siblings. This is an opinion laid out recently by Patricia Davidson in the MetroWest Daily News.
Sibling rivalries have roots that often run deeply into childhood. "Mom always liked you best" festers for generations until both parents have passed away , when it explodes with all the fury that adult children can muster . The more money they have to pay counsel, the harder they can fight.While family businesses worth millions may be at the center of the battle, it is amazing at how trivial some fights may be.
The time to avoid an epoch estate fight is when your children are young. Follow Jackie O’s lead and make damn sure they love each other. See a therapist if you cannot figure out how to do this yourself. In the end, you will have happier kids, you will be happier, and you can go to your eternal rest assured that what you have taken a lifetime to build will not be squandered in meaningless litigation.
Your lawblogger truly believes that Philip Seymour Hoffman was the best actor of his time. Too bad this does not extend to his ability at estate planning. As reported by the New York Post and by extra tv.com here , Hoffman did not want to make his three kids into "trust babies" so he left all of his estate to his long time girlfriend and the mother of his children, Mimi O’Donnell.Hoffman felt that she would always take good care of his children so he took no steps to carve out a specific bequest for them. These sentiments have also been echoed lately by Sting who has said that he is not leaving anything to his children in order to insure that they will have to make their own way in the world without relying on his substantial wealth.
How will all of this work out? Considering that Hoffman died with a needle in his arm. we can only hope for the best for his children.
The Appellate Division of the Second Department has recently denied a motion to immediately suspend Letters Testamentary in the Matter of Mercer (2014 NY Slip Op 05186). SCPA 711 and 719 provide that the Surrogate may suspend or revoke letters where there is proof of a serious breach of fiduciary duty. This involved the improper conversion of tangible property held by the executor. The appellate court opined that:
"[w]hile the Surrogate is clearly granted the exceptional authority to summarily remove executors without the formality of commencing a separate proceeding, the authority to exercise the ultimate sanction summarily is not absolute. The Surrogate may remove without a hearing only where the misconduct is established by undisputed facts or concessions, where the fiduciary’s in-court conduct causes such facts to be within the court’s knowledge, or where facts warranting amendment of letters are presented to the court during a related evidentiary proceeding" (Matter of Duke, 87 NY2d at 472-473 [internal citations omitted; emphasis added])."
A power of attorney is a powerful document posing some danger to the holder. It is common to receive a power of attorney from an aging parent or relative in order to help them handle their personal affairs. In effect, it allows the holder to stand in the shoes of the giver and act as though he or she was that person as far as the outside world is concerned, but a world of trouble lies in wait for the unfortunate who fails to properly use the power.
In order to commence estate proceedings, it is first necessary that all persons essential to the estate receive notice. This would include any person named in the will or anyone who would have standing to object to the will. If there is no will, it would include all distributees — next of kin who would inherit pursuant to intestacy. In order to streamline the proceedings , a lawyer representing the petitioner seeking to be either the executor or administrator will start by mailing a waiver to every necessary person .