An article by Dennis Kennedy in this month’s ABA Journal poses some interesting questions about our "digital estate". Keeping in mind that the "e" in email stands for "evidence" and  "eternal", it is a sure bet that our on line presence will outlive us. That will apply to our email accounts, social networks, and all of the public, private and commercial places where we leave a record of our coming and going on line.

Continue Reading Death And Your Emails

It is generally known and accepted that the executor of an estate may be surcharged for improper or excessive expenses incurred in the administration of the estate. That is what happened when the executor of the estate of Ann M Kadah surcharged $35,000 by the Surrogate of Onondaga County, John J. Elliott. Surrogate Elliott, however, went one step further by awarding statutory (9%) interest on the surcharge against the fiduciary. As reported in In Re Carano 946 N.Y.S.2d 755(A.D. 4 Dept. 2012) the Appellate Division of the Fourth Department was ruled to be an unfair penalty and was disallowed.

"Don’t forget the attic" is an interesting reminder that comes from a fellow lawblogger at the Donnelly Ritigstein Law Firm.  While I must count myself among the millions of you whose mothers unceremoniously disposed of our baseball card and comic book collections [growing up in New York in the fifties, my extensive collection would have been worth zillions today had it only remained in tact], occasionally a basement or attic yields some incredible treasure as witness the story of the Midwestern family who discovered a stash of valuable baseball cards left seventy years ago in an attic when their grandfather died.

It can be very daunting to confront an attic or garage in the home of a relative who spent generations hoarding possessions in boxes and bags. Before you call 800 Take My Stuff or some other such bulk clean out operation, it might not be a bad idea to spend some time sifting though the junk. Even if you do not find the rare and valuable treasure lurking in the corner, there is a great possibility you will stumble across some family heirlooms which will bring back some warm memories and which can  be shared with other relatives. My own surprise came when I looked inside of a beat-up plastic container I was about to toss while cleaning my parents’ home. In it were at least two hundred letters my dad wrote from the Pacific during World War II. Reading them made a tough time quite a bit easier and gave me a new perspective on my dad after Alzheimer’s had taken him.

Everybody seems to have a fascination with celebrities — even when they have died. Your lawblogger has reported on controversies and conundrums arising after the deaths of Whitney Huston, James Brown Rosa Parks and others. Recently, we have seen a spate of stories concerning the estate of Michael Jackson, the "King of Pop".

Here is an article written by attorney Brian Mekdsy of Massachusetts. Mr. Mekdsy has some valuable observations based upon Michael Jackson’s estate and how to avoid many of the pitfalls that have plagued it. It is important to learn from the mistakes of others to avoid making similar mistakes. Remember that while we generally do not have the wealth of the celebrities we follow, we are subject to making the same mistakes that they make —but keep in mind that these errors tend to be more painful and costly when we make them!

Earlier this month I reported on the charges pending against Bronx County Surrogate Lee Holzman for failing to properly supervise a crony who had improperly billed an estate by hundreds of thousands of dollars. Today’s New York Post has now done some in-depth reporting on this story in an article which also brings to light other alleged scams in other counties.

While the overwhelming majority of attorneys would have nothing to do with the shenanigans reported on here, the sad fact is that these cases do occur from time to time and , when  rogue lawyers have the protection of a  judge or clerk they are extremely hard to root out and prosecute.

The key to protecting oneself and one’s clients from this sort of thievery is to make sure that there is a sensible estate plan in place and that the client is protected by a properly drawn and executed will and, if necessary, a trust. It is also necessary to update these documents so that new executors, guardians and trustees can be appointed after those originally designated die, become incompetent or move away. All of this will keep an estate from being administered by lawyers appointed by the court who may or may not do the job the client would have liked to have seen done.

 

 

I have never happily allowed a client to enter into a stipulation with provisions which he or she will probably not be able to keep. Also, while I wholeheartedly subscribe to the maxim that  "A bad settlement is better than a good lawsuit", I try to be careful that the "bad" provisions of a stipulation are not so awful that my client cannot ultimately digest them. It is important to keep in mind that a stipulation is a private contract, not lightly set aside by the court. That is even more so the case where the stipulation is made in open court and on the record.

The decision rendered by the 3rd Department of the Supreme Court’s Appellate Division in the Estate of McLaughlin, reported here is a good cautionary tale of what happens when the client is not totally on board as to the terms and conditions of a settlement. In this particular case the objecting party resided in California and was represented by counsel with the authority to enter into a binding agreement.

Continue Reading A Stipulation Made In Open Court Will Probably Rust If Left In The Rain

Today’sNew York Law Journal has reported  that a referee has upheld charges against Bronx  County Surrogate Lee Holzman that the judge should have fired Michael Lippman Esq, counsel to the Bronx County Public Administrator when he discovered that Lippman had collected excessive fees from estates. Rather than do this, the judge evidently devised a "repayment plan" so that Lippman, who is his friend and who chaired his re-election committee , could pay back the funds without being subjected to disciplinary proceedings. Although other serious charges against the Surrogate were dismissed by the referee, the Commission on Judicial Fitness will recommend his removal from the bench when it meets on September 20th. Having reached the mandatory retirement age of 70, however, Surrogate Holzman must leave the bench at the end of this year in any event.

While most Public Administrators function  well in matters involving small estates where they cannot be paid for their time,  there have been occasions where estates have been charged excessive fees which might not have been the case had private counsel been involved. Significantly, serious charges involving the Public Administrators of two New York City Boroughs  —Kings County and the Bronx– have occurred in the recent past.  To some extent these situations may be avoided by having  vigilant private counsel anticipate the possibility that a  client –or a relative of a client– might be intestate or without competent relatives or friends to serve an estate in a fiduciary capacity.  The extra cost and delay of having an involvement with the Public Administrator can often be avoided with some propper estate planning.

Today’sNew York Law Journal has reported that the Appellate Division of the Supreme Court has overturned a ruling by former Nassau County Surrogate John Riordan and has directed that the estate of a Holocaust survivor return an ancient gold tablet to the Berlin Museum.The court’s unsigned opinion in Matter of Flamenbaum 2010-04400 overruled the lower court’s finding that the museum’s claim was barred by the doctrine of laches. The doctrine of laches provides that where one fails to exercise one’s rights for an undue period of time, those rights are eventually lost.

Continue Reading Holocaust Survivor’s Estate Ordered To Return Ancient Gold Artifact To Berlin Museum

The Supreme Court’s Appellate Division recently upheld New York County Surrogate Nora Anderson’s decision in the probate proceeding of Rosalin E. Melnick 942N.Y.S.2D 45 (A.D. 1Dept 2012) which denied a petitioner’s motion to dismiss objections to the probate of the will where the objectant had already signed a release. The court held that the language of the release was "not clear and unambiguous waiver and that the legatee did not therefore relinquish his statutory right to file validity objections"

 

Continue Reading Appellate Court Upholds Obtjections To Probate In Spite Of Waiver

An article in today’sSan Antonio Express News gives  an important reminder to revise your Will (and revocable trusts where applicable) when you are divorced. As in Texas , New York law provides that an immediate legal consequence of a judgment of divorce is that each party automatically disinherits the other. Numerous legal relationships are instantly extinguished. Joint accounts with right of survivorship are converted into joint accounts in common. Ownership of real property which was originally as tenants by the entirety (where there is an automatic right of survivorship between husband and wife) are converted into tenancies in commnon,.Certain provisions in a Will or revocable trust may not longer be desirable.

Continue Reading Divorce Requires You To Revise Your Will