Oneida County Surrogate Louis Vigliotti’s decision in the Estate of Patricia Powers    is one more example of what happens when you write on a will —-generally nothing. Here it appears that the testator wrote a note on the face of the Will that she was revoking it and writing a new will (which she apparently never did).Your lawblogger uses the word “appears” advisedly since Ms. Powers is no longer in a position to tell us whether or not she actually wrote those words or whether some clever imposter was merely trying to put her estate into intestacy as part of his or her own agenda. That, by the way, is why we require anything a testator does relating to a Last Will and Testament to be witnessed according to law.

It really isn’t hard to revoke a will. Tear it up. Burn it. Take a pen and visibly obliterate a portion of it (then if you write “revoked” next to the obliteration, it will probably carry some weight.). Patricia Powers did none of these things.  In fact, the court points out that nothing that was written on her will so much as touched, obliterated or even defaced a single printed word . The court further notes that there was”no burning, tearing , cutting or mutilation of any kind”. The statutory formalities prescribed by EPTL 3-4(a)(1)A) were not observed at all and the court ruled that the Will remains in effect and could be admitted to Probate.

As I have mentioned earlier on this blog, it is never a good idea to write on the face of a will. Sometimes a testator will attempt to change his or her own will, doubtless in a vain attempt to avoid a trip to visit their attorney in the mistaken belief that this will save some money.  Some will write notes on their Will attempting to change percentages or amounts being left to some beneficiary or another or even draw a simple line through somebody’s name to take them out of the Will.

Such actions result in only two possible unintended results. First is that merely writing on the Will has no effect at all and whatever changes might have been easily (and relatively inexpensively ) achieved by having a lawyer redraft the Will will not occur. Second is that if in attempting to make some correction or addition to the Will, a portion of it is accidentally obliterated (for example, blacking out cousin Ralphie’s name with a magic marker and writing cousin Randy’s name in with pen or pencil) will serve to revoke the Will and result in intestacy, with the instrument becoming totally meaningless.

Your attorney is capable of making the changes you want and keeping you from doing really serious harm to your estate plan which, once you are gone, cannot be corrected.

 

Nassau County Surrogate Edward McCarty III likes to begin his weekly Wednesday calendar call with a folksy chat to the usually packed courtroom. This week, the judge lamented the recent decision of the state to make new staff cuts of court personnel. The court is now losing its cashier as well as the clerk responsible for indexing new matters as they are filed.

Wow! Considering that a relatively small estate generates a $625 filing fee for the state and above half million dollars the fee is double that, Nassau County Surrogate’s Court is a real money maker. The Surrogate bar has also long regarded this court as the gold standard for surrogate’s courts in New York. That is unfortunately going to change since there are simply not enough folks left in critical positions here to make the wheels turn smoothly, process cases and get out a steady stream of well-written decisions.

Not long ago, a lawyer submitting a complete probate package with no problems obtaining jurisdiction on a relatively simple estate matter could advise his or her clients that Letters Testamentary or Letters of Administration could issue in about eight days. We are now up to four to six weeks and the projected cutbacks already in the pipeline will no doubt increase the wait substantially. Imagine waiting up to 90 days for a simple estate to process so that mom and dad’s home could be sold, stock accounts liquidated and surviving relatives can just get on with their lives.

Your lawblogger has never been a big fan of trusts. I have always felt that the probate process offered a level of protection and helped to insure that a decedent’s wishes would better be known and followed. I have always felt that the word “closure” is not a good as it is cracked up to be. Now, however , it may be time to take a fresh look at living trusts. They circumvent the probate process and provide a smooth transition of a family’s business and speed up the disposition of assets when a loved one dies. It may cost more to do a living trust but it is becoming a lot neater and simpler way to wrap up one’s earthly affairs.

 

Your lawblogger recently attended a seminar given by Evan Carroll, the author of  “Your Digital Afterlife”,  a book speaking to the growing issues that have arisen as our activities on line have continued to branch out and multiply. You may not have considered the nature and volume of your pictures stored on Facebook or your years of email on Gmail, Yahoo or the other internet service providers. What happens to them if something happens to you?

It is years since we could purchase film for cameras which took pictures which we could store in our homes. For the twentieth century, photographs were the way in which we all kept pictorial histories of our families. Since the advent of the smart phone, complete with its own digital camera, printed photographs hardly exist. We generally take our pictures and store them digitally, either in the cloud, on Facebook or other similar services. These family pictures are usually stored on websites which we do not own and are password protected. Anyone who has lost a home as a result of a fire or some other disaster will tell you that the most priceless items of personal property which were lost are the family pictures which simply cannot be replaced. Today, you could  replace these pictures by getting copies from the online service where they are stored —but not if the passwords were no longer known. Without the legal ability to recover these passwords and the pictures they protect, you could lose the link to the most cherished memories of your loved one.

Are you aware that these on line custodians of your correspondence, pictures and memories have policies concerning the ability of your next of kin or legal representatives to recover and keep –or delete– these items?  The first hurdle to recovering this information is having the password…..which most folks cannot find when a loved one has died. This is especially true since we are learning to use a multiplicity of passwords which we are now schooled to change frequently. In the past, Facebook has required next of kin to get court orders for passwords and the contents of an account. While they are moving towards a procedure to gain access to an account, this has required litigation in the past, an extremely aggravating and painful experience for the families of servicemen and women killed in combat after years of communicating by email, Facebook and other services.

Many states are in the process of developing a legal process to deal with these issues including drafting uniform legislation. At this time, there is no uniformity in the laws of the various states as to how to treat digital assets. In the meantime, we should keep inventories of our passwords and leave instructions permitting our legal representatives to obtain our digital assets .  These are truly uncharted waters and we should be aware of that.

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.

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.

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

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.

Continue Reading Sometimes A Trust Works Best

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.

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.

Continue Reading Be Careful With Mom’s Power Of Attorney

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 .

Continue Reading When You Get A Waiver In The Mail