The New York Probate Litigation Blog

Court of Appeals to Hear Missing Will Case

Posted in PRACTICE AND PROCEDURE

The Estate of Robyn Lewis reported in the Watertown Daily Times  presents a state of facts perfect for a bar examination question.  When Robyn Lewis and her husband James Simmons divorced in Texas in 1966, Robyn retained ownership of a home in upstate New York. Even though the couple had executed “mirror” wills   (in which each left his or her entire estate to the other)  prior to their divorce, it is well-established that the each was effectively disinherited by the divorce. Robyn’s will provided that if she was predeceased by her husband, her father in law James R Simmons would be her executor and sole heir.

In 2007, Robyn made a new will leaving her two brothers as her beneficiaries. Evidently the will was in a large clearly marked envelope which was given to a neighbor for safekeeping. Unfortunately, Robyn passed away at the young age of 43 and when no one in her family found her will, her brothers applied for and received Letters of Administration.  The plot thickened when her ex Googled her by chance, only t0 learn that she had died. Although he could no l0nger take the inheritance provided for in Robyn’s will, there was no such restriction on his father who then produced the original document and applied for letters Testamentary in New York.

Robyn’s brothers objected to this and , although the will she executed in 2007 was apparently lost, the neighbor gave what the court described as credible testimony to support the existence of the will and that it had disappeared in her safekeeping and her friend had not herself revoked it. Nonetheless the Surrogate ultimately revoked the Letters of Administration granted to the Lewis brothers and admitted the earlier Texas will to probate, naming James R Simmons (Robyn’s former father in law) as executor. The Surrogate, as well as the Appellate Division also noted that there were issues arising out of the fact that Texas law might also have applied here.

So now this rather twisted set of facts will be decided by the Court of Appeals. On one hand, your lawblogger finds it hard to believe that given that two teams of lawyers will be locked in combat over a relatively small  -$200,000- estate  without somebody realizing that there should be an agreeable number out there to serve as a base for a settlement. On the other hand, I cannot help but look at the myriad of interesting issues in this “lost will” case and wonder how the highest court will resolve them. For sure there will be some precedents set here.

Stay tuned!

 

 

Surrogate Denies Attempt To Renounce Infant’s Legacy In Order To Avoid Estate Tax

Posted in NEWS

The Brooklyn Eagle has reported that Kings County Surrogate  Diana Johnson  has denied a petition to renounce a  bequest to a grandchild of a decedent in the six million dollar estate of Sharon Lindsay. The total bequest to the decedent’s husband passes free of both federal and state tax but any inheritance received by the children or grandchildren is subject to New York tax which attaches to estates of more than one million dollars. In this instance, the tax on the grandchild’s inheritance would be two hundred thousand dollars. Petitioner asked the court to permit the renunciation of the infant grandchild’s gift to save the tax.

Basically what the court said is “Nothing doing!”.  The court noted that even though the petitioner’s position is that the money would be applied to the child’s good and welfare and that the child would suffer no loss by renouncing, there was absolutely no guarantee that the child would absolutely receive the bequest which would have been safeguarded until she reached the age of eighteen. The court found that the best interests of the child had to be given consideration in addition to the claims of the petitioner that the tax saving would benefit the child indirectly . Your lawblogger also notes that there are a myriad of intervening events that could end up by costing the grandchild the inheritance that her grandfather obviously intended she receive. The intentions of the testator need to be heeded. At the end of the day, this was a novel but totally understandable and appropriate finding.

Make Sure Your Vital Information Doesn’t Die When You Do

Posted in Uncategorized

Twenty years ago, we always told our clients to make an inventory of their important information, give a copy to a child or trusted family member and leave a copy in a secure place for safekeeping. It’s amazing how much has changed in such a short time but that advice given today would be a recipe for disaster since most of our vital information is no longer kept on paper. It is kept in one computer or another.

In this day and age, even grandparents well into their seventies and eighties have become computer savvy. Credit cards, bank accounts,pension funds, medical records and just about every other important source of important personal information is stored on line and password protected. We have even  begun to use encryption in our everyday lives. Rarely does a week pass when some new form of information is linked to a user name and a new password. With every new horror story about how bad guys in eastern Europe or the heart of Asia are stealing passwords and compromising the records of major banks or big box stores, we are encouraged to revise our passwords and to make them more complex. Of course we are constantly warned never, ever to share them with anyone.
Keep in mind that folks are also electing to go paperless. That means no utility bills, cable bills or store bills. Each such account comes equipped with its own user name and password. Add alarm codes.  And of course there are the passwords to the computer . The plot thickens.

So what happens when Granny dies with all of her passwords locked securely in her cranium? Ultimately it will probably be possible to unlock all of her financial information once her assets are identified when the 1099 forms start arriving after the first of the year . However, it certainly would be far easier if passwords and user names were stored in a safe place known to a trusted relative.

We have long been telling our clients to store their wills, cemetery information and other important documents in a location accessible to a trusted relative or friend. These documents now should be joined by your electronic records.

 

Not Everybody Needs A Trust

Posted in LEGAL INFORMATION

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.

Anna Nicole Smith Estate (Finally) Out Of Court

Posted in NEWS

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.

Do Not Try This At Home –The Do It Yourself Will

Posted in LEGAL INFORMATION

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.

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Sometimes A Trust Works Best

Posted in LEGAL INFORMATION

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.

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Keep The Peace In The Family Or Your Heirs Will Reap The Whirlwind

Posted in LEGAL INFORMATION

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.

Philip Seymour Hoffman Did Not Leave His Estate To His Children

Posted in NEWS

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.