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.


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.

Prior to the commencement of a probate proceeding or an administration proceeding, the attorney for the estate will normally send a waiver consenting to the admission of the will to probate or to the appointment of an administrator to all interested parties who are members of the closest class of kinship to the decedent or who are mentioned in a will. This is a legal document and, once signed, it is difficult if not impossible to retract.

Surrogate Diana Johnson of Kings County recently denied a motion seeking to retract a waiver in the Estate of Miles. The movant who had given the waiver was represented by counsel and had signed the waiver as a result of misconceptions she had about the meaning of the document. The court ruled that in the absence of some proof of fraud or deception, the waiver was binding and could not be retracted.

It cannot be emphasized enough that there is generally a finality about signing a waiver. Your lawblogger frankly does not understand how counsel may have failed to impart this importance   to the person executing the waiver  even though I must confess that I was not a fly on the wall and was  not privy to their conversations on this matter. Suffice to say that if you have any doubts whatsoever about whether or not to sign a waiver, there is generally no harm to you in simply not signing. In such a case, you will eventually be served with a citation and will have the opportunity to appear in court and explain your concerns to the Surrogate and probably one of the court attorneys. If you realize that you will need legal representation, you will be given the opportunity to hire a lawyer to protect your interests.

As an additional afterthought, I would point out that there is no need to fear service of a citation. Like a summons, it is a jurisdictional device. It merely confers jurisdiction on the Surrogate to hear and determine the issues raised in the estate proceeding.

Revisions to New York’s Estate Powers and Trusts Law (EPTL) enacted in 2008 were intended to correct inadvertent failures of a spouse to correct provisions to eliminate ex spouses as beneficiaries. The Matter of Suggs  involves just this type of situation. When the decedent and his spouse divorced, the court made provisions concerning the disposition of a life insurance policy which was to be split 60/40 in favor of the decedent. However, taking into account a debt owed by Mrs. Suggs to her husband, court further found that she no longer had a marital interest in the policy.

In a classic example of carelessness, the decedent neglected to remove his ex wife as beneficiary from the policy and she naturally applied to Prudential for payment of the death benefit upon her ex husband’s death years later.  Surrogate Barbara Howe noted that “under the prior statute, when a couple divorced, the divorce automatically revoked dispositions under the will and, more recently, transfers under Article 13-4.1 (securities held in transfer-on-death form). L.2005, ch. 325, §3. It did not, however, affect the ex-spouse’s rights to in-trust-for bank accounts (Totten Trusts), life insurance policies, lifetime revocable trusts, or joint tenancies with right of survivorship. The statute now terminates the ex-spouse’s interest in all such assets.

The statute readopts several provisions of its predecessor. The ex-spouse is treated as having predeceased the decedent for purposes of her dispositions. If the spouses remarry, the gift is revived if its revocation happened solely because of the divorce. Property held jointly with right of survivorship transforms upon the divorce into a tenancy in common” (Margaret Valentine Turano, Supp Practice Commentaries, id., 2014 Supp Pamph at 66-67, emphasis added).

these revocation-by-divorce statutory provisions were enacted, at least in part, to prevent “inadvertent” dispositions to former spouses:

“Revocation-by-divorce statutes adopt the presumption that in the vast majority of cases the testator’s failure to revoke his will subsequent to divorce is due to neglect.”

Your lawblogger would like to add some additional thoughts to Surrogate Howe’s logical and useful decision. Yes, the revised EPTL did save the estate from the carelessness of the decedent and prevented his ex spouse from reaping undeserved insurance benefits which the judgment of divorce clearly precluded her from receiving. But consider that long periods of time will often pass from the date of a divorce to the date that one of the spouses dies. Consider also that records may be lost or destroyed during this time and that death often comes at a time of great confusion and emotional distress.

It is not such a good idea to rely on the law to save you in situations such as this where your estate may be confronted by an avaricious former spouse and an insurance company that may or may not be aware of who is entitled to what [ as an aside, consider how many former girlfriends of World War II GIs have reaped the benefits of a GI life insurance policy issued to a young soldier who passed away three generations later having forgotten that the policy ever existed!]. It is a much better idea to periodically review the beneficiary provisions of your life insurance policies, retirement plans , etc to make sure that nothing has slipped through the cracks. Remember also that sometimes when insurance companies and retirement plan administrators merge, data on beneficiaries is accidentally and irretrievably purged. You need to keep on top of these policies yourself while you are healthy and sharp!


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.


Undue influence has always been one of the most difficult claims to prove in an estate contest. New York County Surrogate Nora Anderson has determined in The Matter of Wechsler ,2015 Slip Op 3100 U, that sufficient issues of fact have been raised by the Petitioner to warrant a trial on the question of whether or not Lewis Wechsler  was the victim of undue influence when his second wife of 32 years advised his executor that there was no need to probate his Will since she had already transferred his assets to her. This totally frustrated a long-standing testamentary scheme which had been memorialized by no less than four very similar Wills which provided for the children of the decedent’s first marriage as well as his wife. As a result of her actions, more than eight hundred thousand dollars in brokerage accounts together with a Park Avenue Coop apartment were siphoned out of Mr. Wechsler’s estate!

Surrogate Anderson’s decision is a veritable clinic for those who wish to understand and deal with situations where undue influence may be an issue.  Rarely do any of us make a decision which is not the product of one form of influence or another. In fact, most things which influence decisions might best be classified as “due influence”. The exercise of undue influence involves literally taking over the ability of another person to make his or her own decisions; a substitution of one’s own will for the free will of another.

This is your lawblogger’s case. Much of the evidence used to demonstrate the argument that undue influence led to the improper transfer of the assets of the decedent came from the medical records and especially the nurses’ notes in his hospital records. The Petitioner was the attorney for the decedent for many years and had drawn all of his Wills, none of which provided for his children to be disinherited. He also testified that the decedent’s sister and neice had called him to try to convince him to draft a new will favoring Mrs. Wechsler. What the record reveals –but the decision does not specify– is that both of these women are experienced psychiatrists, thereby raising an inference that they may have used their professional skills to influence the decedent to sign documents transferring his assets to his wife when he was hospitalized. The record revealed a man in a seriously weakened condition having suffered from a myriad of debilitating conditions, leaving him open to pressure to abandon his long-standing and well constructed testamentary scheme.

It is important to consider that Mr. Wechsler died in February 2006, a full nine years ago and this middling – sized estate is still in litigation. It may be that the court’s decision on this motion  — which was filed in March 2013— will be appealed, thereby adding at least another twelve to eighteen months to the process. If the decision is affirmed –or if no appeal is taken– there will be a trial. The case will go on for at least a total of ten years. Hopefully, we will be able to report on the conclusion of this matter before then.


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.

The Star Tribune has reported today that Ernie Banks, all star shortstop of the Chicago Cubs who died January 23rd at the age of 83 has left his estate to his caregiver Regina Rice. Banks made his will last October and the witnesses reported that he told them he was not intending to leave anything to his family. No surprise that although a Cook County judge has ruled that the Will was valid, Banks’ family is challenging it in court.

While there are often good reasons to justify a large bequest to a caregiver, the relationship  between a caregiver and his or her patient is one which allows substantial opportunity to exert undue influence on a testator. It is a relationship which warrants scrutiny, especially if the attorney drafter was retained by the caregiver and was not the personal attorney for the patient. This one will be in and out of the headlines for a while.

Stay turned.

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!