Today’s New York Daily News reports the tale of a brawl with potentially  wide-reaching implications for the Administrator of a New York County Estate. The administrator of the 3.1 million dollar estate was arrested for a brawl outside of a New Jersey strip club in which he has  been accused of assaulting a police officer. Tow truck operatorJohn Mattarazo was also accused by a cousin of illegally taking thousands of dollars from the estate of  the very successful hair care business built up by his aunt Maria Matarazzo.

While a felony would normally automatically exclude one from eligibility as a fiduciary, Mattarazo was given deferred prosecution and was not convicted of a crime. Nevertheless he was appointed the administrator of the estate. Now a cousin, citing his numerous alleged misdeeds has moved to have him removed as administrator.

Were this a case of an executor under a will, a court might  be willing to give more credence to the nomination of a fiduciary since we would go to great lengths to follow the dictates of a decedent choosing his own executor. That direction simply is not present where a court is asked to remove a fiduciary who has  not adhered to basic standards of fiduciary behavior. Continue to watch this space for more news from the court’s ruling on this attempt to remove the fiduciary.

In the Matter of Reuben Hoppenstein, No. 2015-2918/A (N.Y. Sur. Mar. 31, 2017) the New York County Surrogate ruled as appropriate the distribution of a life insurance policy to a new trust which eliminated certain beneficiaries of the distributing trust. This distribution was made by a trustee vested with absolute discretionary power  by the terms of the trust. The beneficiaries who were excluded brought suit against the trustee . The Surrogate deferred to the trust instrument even though it was not in strict compliance with the Estate Powers and Trusts Law.

The law always seeks to determine the intent of the creator of an instrument. Here the creator of the trust wished that his trustee have absolute discretion to make certain distributions. That provision inherently has the potential to disappoint some beneficiaries who were expecting to receive distributions from the trust but “absolute discretion” means just that.

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.

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.

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.

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.

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.

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.

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.

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.