The New York Probate Litigation Blog

New Surrogate Breathes New Life Into The Dead Man’s Statute

Posted in LEGAL INFORMATION, Uncategorized

The New York Law Journal has reported that newly appointed Kings County Surrogate John Ingram has barred the testimony of a widow in an action about whether or not she may exercise her spousal right of election in the matter of her late husband’s estate. Irving Berk, who died in 2006, left a five million dollar estate to his children and his grandchildren.

Mr. Berk’s caregiver, Hua Wang, has attempted to exercise the spousal right of election after having married the him secretly. Finding that the widow would be testifying about her relationship with  her deceased husband while having a pecuniary interest in the outcome of her testimony, the court barred her from giving what would be a one-sided narrative. The issue as to whether the widow has forfeited her ability to exercise her right of election will be decided absent her testimony.

The Public Administrator Can Be A Complex Web Of Costly Patronage

Posted in LEGAL INFORMATION, NEWS

A recent article in New York’s Daily News reports on the Queens County political machine and  its incredible control over proceedings in that county’s Surrogate’s  Court. It is a primer  on  the perils  of what can happen where there is no Will and no decent estate plan. Your lawblogger has often commented on the way in which a Public Administrator can affect the outcome of an estate. While the Public Administrator generally has the job of handling the estates of folks who die without a will and who have no relatives to step up and administer their estates, there is also a significant number of estates where executors and  administrators do not qualify to serve and they are replaced by the Public Administrator.

The Public Administrator is a business unto itself, collecting all of the assets due the estate, paying the bills and  disbursing to the distributees of the deceased. Along the way, they hire the brokers who are needed to sell parcels of real estate,  contractors to clean up  and repair assets and auctioneers to  sell items such as art,  coin  collections, cars and boats. The Public Administrator employs a law firm to handle all of the legal  work  involved and the fees generated and paid  can  be huge!

It’s good to be a friend or political crony of the Public Administrator and it can be really costly to an estate! Although some of the estates handled are small and unprofitable, estates valued  in excess of one million dollars are not  uncommon. The Public Administrator earns a commission on every  dollar brought into and estate –and on every dollar  paid out. While many of my clients  will  serve as  executors or administrators for the estate of a family member without taking the commission provided for by law, the Public Administrator always takes the commission.

So many of the problems that involve the Public Administrator can be avoided with a little bit of planning. One of the obvious answers, of course, is simply to have a well-drawn will appointing executors and trustees who are up to the task. Using self-directed assets such as an ITF bank account, retirement account or  a trust can basically eliminate the need for the Public Administrator to step into the breach. Failing to do this can cost many thousands of dollars and incredible aggravation.

Computer Generated Images Open Uncharted Territory For The Estates Of Deceased Actors

Posted in NEWS

Over the past holiday I treated my 15 year old grandson to a movie. Rogue One was not my choice but he enjoyed it immensely. At the close of the movie, a computer generated image of Carrie Fisher as Princess Leia  appeared on the screen. One day later, Carrie Fisher passed away after suffering a heart attack on a flight about to land at Los Angeles.

Reuters Entertainment News reports that there is now a growing concern among actors over how best to protect the rights of their estates should they be posthumously depicted in some  future movie. California currently requires that the heirs may control the way in which their images may be used posthumously — if at all. It is now clear that this subject involves substantial  intellectual  property rights which need to  be addressed while the performer is  still alive. As computer generated technology continues to improve and expand, protection of these intellectual property rights will be of greater importance and provisions for this will become common features of contracts in the entertainment industry.

Decanting A Trust –Sometimes An Irrevocable Trust Is Irrevocable And Sometimes It Isn’t

Posted in Legal Info, LEGAL INFORMATION, Legal Services

Michael Petro’s article in the Buffalo Law Journal  is an interesting  piece about  a relatively new provision of the law which permits us to end an “irrevocable” trust. It’s easy to decant a fine wine but not always so with an irrevocable trust.

Before the law was changed in 2011, ” irrevocable” meant just that. We were required to adhere to the wishes and directions of the trust’s creator even though changing times might have resulted in circumstances that the he or she would have believed warranted a change in the trust. Now it is possible to decant a trust which otherwise would have been irrevocable years after its long-deceased creator conceived of its rules. For example, changes in tax laws over the years can make it extremely desirable to change the trust —or simply end it without the blessing of the trust’s creator who is no longer here to give it although it might be hard to envision him or her not doing so.

However, as Shakespeare  would say, “Here’s the rub”. It may sound logical that everyone affected by the trust needs to consent to changing of revoking the instrument. Sometimes, however, it is impossible to gain the consents of all of the siblings who stand to benefit (or lose) by the proposed change. More important is the fact that where minors are beneficiaries or where they have a contingent interest triggered by the death of a parent – beneficiary, their consent is also necessary and may be obtained by the appointment of a guardian ad litem. This may be an expensive and time consuming proceeding so the instrument needs to be reviewed in light of the facts surrounding the beneficiaries and to see whether or not it is cost-effective and whether time will simply make the decanting unnecessary.

“Oh What A Tangled Web We Weave…When First We Practice To Deceive”

Posted in LEGAL INFORMATION, NEWS

Walter Scott’s epic words quoted above are a good guide for all of us; especially for attorneys. In what would appear to be a perfectly ridiculous way to lose a law license, New York City attorney James A. Robbins has been disbarred after losing a will entrusted to his safekeeping and then making up a series of completely phony excuses as to why the estate was being delayed without ever disclosing that the will was lost. He evidently compounded his mistake by forging documents filed with the Surrogate’s Court in an elaborate cover up to try to probate the will.

The  completely dumb thing about this is that (as your lawblogger has reported at length in earlier posts) a lost will may be admitted to probate in a situation such as this where the loss and disappearance of the document can be explained by the attorney who was its last custodian. The facts and circumstances reported in the New York Law Journal would indicate that this was a situation where instead of a series of lies and fabrications, counsel could have succeeded in having a copy of the will admitted to probate by simply falling on his sword and admitting to his mistake and explaining that  the will had disappeared in his custody. We all make mistakes and , especially where the results are not fatal, an explanation coupled with an apology and cleaning up the mess is usually sufficient to placate most clients. However, even if the client’s reaction is to fire counsel, the loss of the business and the client is a far acceptable outcome to the loss of a professional license, a felony conviction and 500 hours of community service.

They’re Coming Our Of The Woodwork For A Piece Of Prince’s Estate

Posted in LEGAL INFORMATION, NEWS

There is nothing like the death of a wealthy celebrity who dies without a will to bring scads of would-be relatives out of the woodwork, each claiming to be a long-lost brother, sister, cousin, etc. Loren Barr’s Trust and Estate Blog presents a great picture of the chaos which has unfortunately ensued after the death of music legend Prince this past April.

Prince’s estate is valued at between one hundred million and three hundred million dollars and, as so often happens with artists of his caliber, income continues to pile up not only from sales of his music but also from tours conducted at his palatial home in Minnesota. So far the probate judge has excluded no less than 29 folks hoping to game a piece of Prince’s fortune.

Minnesota law provides that the estate is to be shared equally by Prince’s siblings (and the children of any deceased brothers and sisters) . Getting past the humor of the situation that we see when claims are made by those claiming to be his children (he had none) and a woman claiming to be married to him in secret, the less humorous side of Prince’s estate is the fact that the combined federal and state estate tax bite will be 56%.

While this means that all 330 million of us will share a little piece of Prince’s wealth, your lawblogger finds it shocking that there appears to be no attempt on his part to plan for the inevitability of his death. A will would have been a good start as would be charitable foundations, trusts and other devices which would have allowed him to focus his wealth on people, causes and goals which meant much to him while minimizing the extent of his estate tax. Of course, his untimely death also proved to be a windfall for a battalion of lawyers and accountants who will  be involved in cleaning up the mess.

At the end of the day, this is a lesson for all of us to realize the importance of  getting our own houses in order.

Will Drafting Requires Choosing The Right Words –Something You Should Have A Lawyer Do For You

Posted in LEGAL INFORMATION

Just about anyone who can navigate the web can find a template for a do it yourself will. After all, why go to a lawyer to draft your will when you can figure out how to do it yourself for free?

Your lawblogger has long contended with the misconception that just because somebody is literate in English and can read and write, that they can successfully draft a legal document — even one as critical as their own Last Will and Testament.

A recent article in The Catholic Register illustrates just that point. Keep in mind that you won’t be around to explain to folks just what you meant when you wrote your own will so that any confusion resulting from a poor choice of words will end up in court. In Surrogate’s Court, we try to determine the true wishes of the person who wrote the Will and to follow them if at all possible. Unfortunately, that will likely lead to some high-priced legal talent taking sides and litigating to reach a conclusion as to what your simple words might explain if only you were alive to help solve the problem.

A worst case scenario could lead to your Will being denied probate resulting in your estate being distributed as if you had no will. Your spouse (if you are married) will share your estate with your children who will inherit in equal shares. All well and good except that your spendthrift son who you left nothing to when he ran off to the circus will get his share together with your other kids. On a more somber note, any specific gifts you made to charities or to friends would fail and not be honored. On a real serious note, a child with special needs would have his or her legacy snatched up by the state in the absence of a supplemental needs trust or other some other way to protect those assets.

Another point is that a DIY will lacks the protection that we get from the rite of due execution when your Will’s execution is properly witnessed and supervised by a licensed attorney.

It isn’t all that hard for a competent and qualified attorney to draft your Will. The cost is not prohibitive and pales by comparison to the cost of doing a bad job  on your own.

Appellate Division Allows Admission Of Extrinsic Evidence To Resolve Ambiguous Contract

Posted in Uncategorized

The decision of the Appellate Division’s Second Department to reverse Suffolk County Surrogate John  Czyger in the Matter of Kohn reported at http://2016 NY Slip Op 07194 involves a dispute over the meaning of a pre-nuptial agreement.  No tears here for the respondent wife who sought to sought a judgment entitling her to recover $3,500,000 less the amount of four mortgages and one half the value of joint accounts identified in the agreement. The executor of her late husband’s estate contended that the entire value of the joint accounts should set off against the amount ultimately paid to Ms. Kohn  (a/k/a Lutz).

After finding that both parties offered reasonable interpretations of the agreement, the court ruled that the ambiguities of the contested agreement could be determined on renewal by examining  evidence submitted by the estate indicating that the parties intended that the wife’s recovery should be limited to the $3,500,000 less the mortgages and the entire amount of the joint accounts. The court opined that under normal conditions,  it would  not look outside of the four corners of the agreement in order to interpret it. Here, parol evidence was admitted to explain an ambiguous agreement.

Your lawblogger notes that the court’s ability to determine the intent of the parties here is somewhat hampered by the fact that the decedent is no longer available to tell us his side of the story, thereby making it more understandable to look to the deposition of a non-party (one of the attorneys involved in the negotiation of the original agreement) to assist in making a final determination.

Executors Should Beware Of Serious Pitfalls

Posted in LEGAL INFORMATION

Today’s Wall Street Journal contains a worthwhile but cautionary article about the pitfalls that can face even the most well-meaning executor. As you will see, a lot of the decisions an executor must make need to be made counterintuitively. The results of following a normal instinct may actually prove to be costly if not downright disasterous.

Your lawblogger’s first boss succinctly explained the job of an executor to me some forty years ago. “Take the estate to a good and experienced lawyer. Hand it over to him or her and sign the checks and documents you are given to sign”.  I have followed that recipe ever since. The estate checkbook stays in my desk and we coordinate all of the aspects of the estate with brokers, accountants and the other professionals needed to marshall the assets, sell what needs to be sold, pay the bills and pay the heirs. A lawyer’s prime responsibility is to protect the executors and trustees which can best be done by proceeding “by the book”.

Every once in a while, a client goes “rogue” either by accident or when they are sure that they can take care of business better than their attorney, conveniently ignoring the fact that their lawyer is trained and experienced to handle the estate and the client already has a full-time job. Even if the process is relatively undisturbed by this “freelancing” , it will invariably cause your lawyer to spend much more time on the estate and, in the end, will likely cause your bill to be higher and not lower as a result.

 

David Bowie’s Will Filed In Manhattan Surrogate’s Court — His Estate Valued At 100 Million Dollars

Posted in NEWS

The Will of David Robert Jones was filed earlier this month in New York County Surrogate’s Court giving the value of his estate at 100 million dollars. Not familiar with David Robert Jones? As the New York Times reported, He was far better known to most of you as David Bowie, the iconic musician who passed away on January 10th ( two days after his 69th birthday) after a quiet battle with cancer and just as he released his first new album in years. Since he never legally changed his name to Bowie, his estate goes forward under his birth name.

Your lawblogger remembers him best as Major Tom, whose “Space Oddity” has become a musical classic along with his equally classic “Changes”. Bowie was cremated and he specified that his ashes were to be scattered over Bali.

Bowie was a major celebrity who lived a very quiet life in New York. Generally, this blog highlights estates which are mired in legal controversy and generate perspectives which serve to educate my readers about the pitfalls of estate litigation and a guide for average folks. What strikes me about this estate is that it seems incredibly normal and well-ordered. While I live to be surprised by the unexpected , it sure appears that the estate of this incredibly talented and successful artist will proceed without legal battles or undue complications. If I am  wrong, watch this space for unexpected developments.