Articles Posted in Estate Administration

Many of our readers are aware that the United States Supreme Court recently overturned Roe v. Wade, its landmark decision wherein it determined that the right to privacy derived from the 14^th Amendment to the Constitution applies to abortion rights.  Dobbs v. Jackson Women’s Health Organization , found that abortion rights should now be determined by each individual state, instead of at the Federal level.  Justice Samuel A. Alito, Jr., as lead author of Dobbs, wrote that the Court was ruling with respect to abortion rights only, but not as to other rights derived from the line of right to privacy cases, such as contraception and same-sex marriage.  The concurring opinion of Justice Thomas in Dobbs raised concern because he suggested that the Court should reconsider other privacy cases.  While it is not this author’s intent to comment on the abortion rights debate, it is the intent of this post to highlight legal protections required by same-sex couples, particularly with respect to estate planning should marriage equality not be consistently upheld on the Federal level.

In Obergefell v. Hodges , the Court found that same-sex marriage is a right derived from the 14^th Amendment to the Constitution.  However, if this decision is reexamined and overturned, the implications for same-sex couples could be severe.  Those persons already married may have the rug pulled out from under them and be legally considered to be unmarried, depending upon their state.  It should be noted that there is a movement to pass legislation at the Federal level to codify the right to same-sex marriage.  Such legislation may not be ultimately passed into law or could be overturned by future Supreme Court rulings.

Unmarried couples should engage the services of experienced attorneys to draft estate documents, such as Wills, Trusts, Living Wills, Health Care Proxies and Powers of Attorneys.  The reason for this activity is that the law generally considers that default decision maker to be the spouse with respect to end of life health care decisions and distribution of assets.   Same-sex partners may not always be considered to be legal spouses if judicial decisions continue to follow this conservative route.  If a person dies without a Will in New York, the applicable statute determines the distribution of assets and who may be the Administrator of the Estate.  Unless same-sex marriage is consistently recognized, a same-sex partner may be excluded from receiving assets and from acting as Administrator.  Family members who are estranged from the deceased could take the place of the intended life partner in this event.  The best way to prevent this outcome is to have professionally prepared estate documents in place that comply with one’s wishes and clearly state that the same-sex partner is to inherit and serve as fiduciary for the Estate.

News outlets have reported the recent death of rap icon DMX, whose real name was Earl Simmons.  The New York rapper was born in Mount Vernon and raised in Yonkers, the territory served by our law firm.  Two candlelight vigils are being held for DMX in order to soothe his grieving fans.  DMX anticipated such events when he rapped “[t]hink when you die, how many’s gonna miss you.”  Since Simmons lived in Westchester County  at the time of his death, his estate case will now proceed in the Westchester County Surrogate’s Court.  Arguably the most notable characteristic of DMX’s life is that he was allegedly the father to fifteen (15) children.  This post will examine the legal issues that arise from DMX being the father to so many offspring.

This author is not privy to the details of DMX’s estate, but is using the procreative life of DMX as a springboard for discussion.  For the purposes of this post, we will assume that the closest possible heir is a child rather than a spouse.  If Simmons had a written Will, it would be subject to a probate proceeding.  Without a Will, DMX would be considered to have died intestate and those persons in the closest order of relationship would inherit.  Even in a probate proceeding, those persons who would have inherited according to the intestacy statute have the legal right to challenge the Will, so that they would potentially share in the inheritance.  With 15 children, certainly there will be such challenges as these persons will need to prove that they are related to DMX in order to inherit.  Each child may have a stronger case to inherit depending upon whether DMX was married to their mother, whether DNA evidence links DMX to the child, or if DMX formally acknowledged the child as his in writing.  As DMX understood it, “[m]y dogs is dogs with official bloodlines.”

Inheritance by non-marital children is permitted under certain circumstances in New York State.  Such a non-marital child can be determined to be the legitimate child of the father (with the right to inherit from him) under specific circumstances.  The Court during the father’s lifetime would need to issue an Order of Filiation declaring paternity or the mother and father of the child would need to sign a written acknowledgement of paternity and have such document notarized.  The father could also sign a written acknowledgement of paternity before a notary public, which document is required to be filed with the putative father registry, proceeds to the department of social services and is legally served on the mother.

Many of our readers were heartbroken when the prolific television interviewer Larry King recently passed away.  He was married many times.  At the time of his death, he had filed for divorce from his seventh wife, Shawn.  Shortly after he started the divorce case, he allegedly prepared a handwritten amendment to his Will.  Such amendment drastically changed the dispositions and executor appointment designation and most notably disqualified Shawn from inheritance.  Shawn has now filed to contest the purported will in California.  While this author cannot comment on the manner in which a California Court will determine this case, this post will discuss the possible results of such a matter in New York.

New York State has specific statutory requirements for the execution of wills.  For purposes of this discussion, an amendment to a will is usually referred to as a Codicil, which must be signed and witnessed in the same fashion as a will.  An experienced legal practitioner should supervise the execution of a Will so that it is deemed to be valid.  Under rare circumstances, New York recognizes handwritten wills.  New York law would disqualify the validity of Larry King’s handwritten will because King did not fit within the extremely narrow provisions required to make a handwritten will valid: he was not a member of the armed forces during a war or a mariner at sea at the time of his death.

Courts in the area served by our practice often hear cases concerning objections to wills.  Initially, the Court will evaluate issues concerning the due execution of the will according to the statutes discussed above and may disqualify the will because it was handwritten and did not fall within the exceptions listed.  Then, the Court may consider other matters such as undue influence, diminished mental capacity and testamentary capacity.  King’s estranged wife has raised all of these issues in her challenge.

Successful contemporary art dealer Andre Zarre passed away and left his massive multi-million dollar estate solely to a deli worker, who was also nominated as Executor to the estate.  Does this situation strike our readers  as a legal result that can be contested?  The answer is yes, for the reasons discussed in this post.

Although Zarre was a successful art dealer, his entrepreneurial spirit led to his eventual ownership of a Queens deli.  The deli worker Jose Yeje was either in charge of the deli or a co-owner, depending upon the version of events that one wants to believe.  Zarre’s health deteriorated to the extent that he eventually became legally blind, had significant mobility issues, and advanced heart disease.  At the same time, the relationship between Zarre and Yeje progressed to the point that Yeje became Zarre’s trusted caretaker.  Then, Zarre signed the subject Will, shortly before his death.

When an estate is administered , the executor of a will needs to obtain waivers from those who could inherit under New York’s intestacy statute .  Otherwise, such persons maintain their legal right to challenge the will being sought to be admitted to probate.  Yeje’s legal counsel approached Zarre’s cousin to obtain such a waiver.  The cousin was shocked because Zarre had previously promised to leave his estate to the cousin and potentially other relatives.  It will remain to be seen how the Surrogate’s Court  will evaluate the validity of this promise.  When a waiver is not delivered, the proponent of the will then needs to serve the person requested to waive with a citation to attend a Court appearance  for the purpose of raising legal issues why the will should not be admitted to probate.

News outlets have recently reported  the death of an eighties icon, the “Cars” lead singer Rick Ocasek.  When he passed away, he was in the process of divorcing his wife of several decades who was “…dancing ‘neath the starry sky…”.  The Will filed for his estate  stated that although his divorce may not be final at his death, his wife is to be denied her elective share because she abandoned him.  This post will discuss the legal concepts involved in such an estate structure and whether Ocasek’s wishes are likely to be implemented.

We  have previously evaluated marital rights in a New York estates.  If a person dies without a Will, an estate administration would be conducted and the intestacy statute dictates the persons who will inherit.  In the case when a spouse and children survive, the surviving spouse would receive Fifty Thousand Dollars and one-half of the balance of the estate.  When there is a Will, a probate proceeding will be necessary.  New York’s elective share statute provides in effect that a spouse cannot be disinherited.  Even if the Will does not provide for the spouse to inherit, the surviving spouse can take her elective share, which is one-third of the value of the estate in most cases.

It is necessary to consult with skilled estate practitioners  when experiencing significant life events such as divorce.  As the “…good times…” may no longer “…roll…”, one’s documents should be reflective of current relationships.  Perhaps Ocasek told his estranged wife that “…you can’t go on thinking nothing’s wrong, who’s going to drive you home tonight?”  Further, it may be helpful in the case of a famous person who may not wish for his Will to be available for viewing by the general public to create a Trust.

Most of the press concerning Jeffrey Epstein concerns the despicable crimes of which he is accused.  Of interest to this author  is the Will and other estate documents signed by Epstein merely two days before his death by suicide.  There are legitimate reasons why a person in prison or in the hospital may have an experienced attorney prepare documents such as a Will, power of attorney and health care proxy evidencing their last wishes with the anticipation of impending death.  If a person is in prison for a long time and even has children, his legal affairs need to be in order should he suffer death as a result of another inmate or from other causes.  However, Epstein seems to have fashioned a scheme to shield his assets and possibly defraud creditors of his estate, most notably his victims.

Apparently Epstein’s estate plan included a “pourover” Will that dictated that his assets would be left to a trust.  His executors then filed the Will in the U.S. Virgin Islands, rather than in New York State.  The possible explanations for this strategy will be discussed in this post.  We  may advise our estate clientele  to have such an estate structure, although not for such nefarious purposes.  As we have explained in prior posts, a trust can be a valuable tool in estate planning for certain persons.  In the event of a potential Will contest, trust provisions typically are more difficult to be challenged.  Further, in the case of famous people who may not want specifics of their assets and beneficiaries made public in a Surrogate’s Court filing , trusts afford the opportunity to keep such matters private because they are not filed with the Court.

Venue, the location of the probate Court filing, is an interesting issue in this case as well.  Typically, a Will should be filed in the state where the deceased maintained his primary residence.  However, Epstein had multiple residences around the world and seems to have selected the U.S. Virgin Islands as the location to probate his Will because he owned at least one island in the territory.  It is possible that the Court will decline venue and move the probate proceeding to New York, where Epstein seems to have spent the majority of his time.  In any case, ancillary probate proceedings will be required to determine the disposition of properties in each location.

Our readers may be aware of the recent death of fashion icon Gloria Vanderbilt.  Having died at the ripe old age of 95, Ms. Vanderbilt’s life had many interesting dimensions.  From a legal perspective, Vanderbilt experienced a Court proceeding as a young child that is instructive to our clientele.  The Vanderbilt family is one of the historically ultra wealthy families in the United States.  Gloria’s father died when she was an infant, leaving her substantial share of his Estate in trust to be managed by her mother as trustee.  Instead of using the trust as intended, for the care and support of Gloria, the trust was used for her mother’s lavish excursions to Europe and the like.  Fortunately, Gloria’s Aunt observed her mother’s behavior and brought a successful Court action, known as “the trial of the century”, to remove her mother as trustee and obtain custody of Gloria.

The Vanderbilt matter demonstrates that the Surrogate’s Court will certainly intervene when trustee abuse occurs and when the trustee is not managing the trust assets for the benefit of the beneficiary.  There are additional reasons why a petition to remove or replace a trustee will be entertained by the Surrogate’s Court.  For instance, a trustee was named in a document drafted thirty-five years ago when the intended trustee was fifty years old.  Now the trustee expected to serve is eighty-five years old and is not enjoying good health.  An expert draftsman will anticipate this potential issue when drafting a will or trust and will suggest that the named trustee may not be practical.  Also, a will or trust can be subsequently amended by codicil or trust amendment should the client note changes in the named trustee that make such person unfit to serve.  Codicils and trust amendments are less time consuming than engaging in Court intervention at a future time.  Another potential safeguard is to name a corporate trustee (such as a bank) to serve, in order to avoid trustee abuse as well as the possible aging or death of the proposed trustee.

As in the case of Whitney Houston’s executor , there are certain roles that are appropriate for a trustee.  A trustee should be financially savvy and is required to invest assets prudently.  Income and principal of the trust is to be distributed for the purposes named in the trust.  Such purposes may be to maintain the lifestyle to which the beneficiary is accustomed, pay for education, fund enriching travel, cover healthcare costs, and the like.  Your attorney will ask you to consider a responsible and honest person to serve as your trustee.  It is also preferable to consider a trustee who has a good relationship with the beneficiary, as there will be significant interaction between them in the future.

Our readers may be aware of the business activities recently announced by the Executor of the Estate of deceased pop icon Whitney Houston.  After having rejected prior business opportunities, the Executor has decided to enter an arrangement with a music and marketing company to have a touring hologram of Ms. Houston’s image, a possible Broadway musical, branding deals, and issue an album of unreleased music tracks.  This activity gives rise to the question; “[h]ow will I know” if promoting business activity is legally proper for an executor in New York?  We suggest that you “don’t trust your feelings” and that you consult an experienced attorney who “know[s] about these things”.

By way of background, if a person dies with a Will, the Surrogate’s Court appoints the executor named in the Will.  The deceased, in “racing with destiny” has “laid the plans” and named her chosen executor in the Will.  The executor’s role is to collect and preserve assets, determine and pay just debts and distribute funds remaining after these activities to the beneficiaries named in the Will.  When drafting a Will , your attorney will include a “powers clause” for the executor.  It could be an extensive list of activities that the executor may conduct, such as making investments, selling property, borrowing money, employing professionals such as accountants and attorneys , making tax elections and the like.  In the alternative, the powers clause may instead be general in nature, such as the full power and authority in all matters as if the deceased is still living.  Of course, the executor is forbidden from self-dealing and transferring assets for the benefit of anyone besides estate beneficiaries.

The activities of Whitney Houston’s executor could be evaluated in multiple ways.  As reported in the news story, she is pursuing new business opportunities rather than winding down the estate, distributing the assets to the beneficiaries and closing the estate.  On the other hand, it may be considered wrong in the Houston estate matter if an executor declines business opportunities that could be lucrative for the beneficiaries and enlarge estate assets.  Certainly, the Houston Estate matter provides an executor unique opportunities to generate additional estate income.  However, most people are not famous.  It is unlikely that the typical executor can legitimately promote additional business activities for reasons besides increasing his own commission.  The executor does personally benefit by increasing potential executor commissions that can be collected, as such commissions are calculated based upon the value of the estate.  We would recommend that the executor confer with the beneficiaries to determine if they would rather have the estate maximize its future assets or if they would prefer to have the estate distribute and close without delay.  Although such a discussion is not legally required, it could prevent the beneficiaries from making a claim against the executor for delay in closing the estate if they all agree that such business activity be conducted.

Music lovers, reeling from the recent news of Aretha Franklin’s death, have now found out that the “Queen of Soul” died intestate, without a will.  This blog has previously addressed the matter of another musician, Prince, having passed away without a will and the legal repercussions.  We  will address the legal issues that have arisen once the “Queen of Soul” passed away without a will.

In Michigan, where Ms. Franklin had her primary residence, the assets of an unmarried person are left in equal shares to her children.  New York would have a similar disposition.  Devil’s advocates might say that if the legal result of having no will is the same as having a will, that the children will inherit the assets, what is the benefit of having a will?  First, if one has a will, the fiduciary of the estate (Executor) can be selected by the decedent, rather than the default person being selected according to statute.  For instance, musicians such as Prince and Aretha Franklin leave vast music catalogs deserving of post-death management by an expert who has knowledge of how to handle such specialized assets.  Second, a person making a will may have a preference for how the assets will be distributed, instead of the statutory default of all children sharing equally.  If Ms. Franklin had devoted greater consideration to this issue, she may have found it appropriate for the “red roses” in the garden in “Spanish Harlem” to be transferred to the child who would most appreciate and care for this asset.  Further, family infighting over her “pink Cadillac” could have been avoided, so that the ride “on the freeway of love” could take place without delay.

Apparently, Ms. Franklin valued privacy and nondisclosure of her assets during her lifetime.  The best way for her to have avoided the additional public disclosure that takes places when one dies without a will would be to have made a revocable trust.  That way, assets titled in the name of the trust would be transferred automatically after death as directed in the trust, with no public disclosure and without Court intervention and the delays that it may entail.