Articles Posted in Wills & Trusts

goldbarMany viewers have been intrigued by the popular television series The Golden Bachelor, in which an older widower selected the second love of his life as his fiancee.  The widower was portrayed as absent from the dating scene after the death of his wife.  On the eve of the final episode, an article was published describing the bachelor’s relationship after the death of his wife with a live-in girlfriend and unsavory details about the golden bachelor (Gerry).  For instance, Gerry’s thrifty side allegedly caused him to “go dutch” on all expenses and activities with his girlfriend.

One distinguishing factor between the show’s two finalists (Leslie and Theresa) was that Theresa may be wealthy.  During their last date, Gerry asked Theresa about her professional life.  She stated that she was a homemaker before she dappled in the stock market.  She was successful trading stocks for herself and then started a career as a financial services professional.  Gerry, who has been reported to have a questionable professional history, was quite impressed by this information.  Perhaps the golden bachelor is actually a gold digger seeking wealth.  This post will examine estate matters to be addressed on behalf of older individuals such as Gerry and Theresa, aged 72 and 70 respectively.

A newly engaged couple with children and grandchildren from a prior marriage should seek the advice of an experienced attorney.  It would be prudent to draft estate documents whereby the second spouse would not inherit outright, but would receive income during lifetime from assets held in a testamentary trust, with the balance to be delivered to the children or grandchildren of the first marriage.  This plan will protect the spouse’s family of the first marriage from a second spouse who may be motivated by acquiring wealth from the new spouse.

streeteasy-300x199The recent death of Matthew Perry, best known for playing “Chandler Bing” on the popular sitcom Friends, has deeply affected many of our readers.  Although Perry was known for his fabulous sense of humor, the dark side of his life was notable for his addiction to alcohol and drugs, almost causing his death numerous times.  His painful life was documented in his memoir entitled Friends, Lovers and the Big Terrible Thing.

The Emmy nominated actor may be “The One with Estate Issues.”  Although this author is not privy to the details of Mr. Perry’s estate, this post will discuss some of the estate concerns that could arise.  Mr. Perry died at his home in California.  Most if not all of Mr. Perry’s estate will be determined by California law as a result.  However, if he happened to have owned a pied-a-terre in Manhattan, the disposition of that property would be determined by an ancillary proceeding in New York after the completion of any California proceeding.  The remainder of this post will address the legal result as if Mr. Perry had died in New York, since the legal matters covered by this blog deal with New York law.

It must be determined whether or not Mr. Perry had a Will.  If there was a Will, it would be subject to a probate proceeding, whereby the Will would be submitted to the Surrogate’s Court and Letters Testamentary would be issued to the named Executor.  In order for a Will to be valid, the testator (person making the Will) needs to have mental capacity and not be impaired by alcohol or drugs when signing the document.  Certainly, a person such as Mr. Perry may have had issues concerning mental capacity when signing a Will.  However, experienced attorneys who properly conduct the will execution ceremony will not proceed if their client appears impaired at the time of signing.  Likewise, the witnesses should simultaneously sign a “self-proving affidavit” whereby they are confirming that the testator was of sound mind and under no physical or mental impairment that would affect his capacity to make a valid Will.

power-of-attorney--300x200News outlets have recently reported that Senator Dianne Feinstein has given a power of attorney to her daughter.  Concerns over the Senator’s mental competency have arisen as a result.  For the reasons discussed in this post, appointing an agent by power of attorney does not necessarily mean that one is incompetent to handle one’s legal and financial affairs.

In New York State, there are various types of powers of attorney, governed by a provision of the General Obligations Law.  In all cases, the person making the power of attorney is the principal who appoints a person or persons to act on one’s behalf, an agent.  The standard form of power of attorney appoints one or two agents, who may or may not be required to act together.  Up to any of fifteen legal actions can be authorized or all fifteen actions can be authorized.  Some examples of the actions that could be authorized include real estate transactions, banking, insurance and tax matters.  The document needs to be initialed and signed by the principal, as well as notarized and witnessed by two persons.  The agent cannot be a notary or witness to the document, but the agent needs to sign a portion of the document before a notary accepting the role as agent.  This type of power of attorney is effective immediately and is not dependent upon whether a person is competent.

The standard power of attorney can also limit the agent to acting with respect to a specific matter.  For instance, if the principal will not be attending her house closing, she can appoint her attorney for the limited purpose of all matters required to complete a specific transaction.  In this case, only some of the fifteen potential actions will be authorized.  This limitation protects both the principal and the agent, since the agent cannot conduct actions beyond those required for the closing.  The agent appointed could be a spouse or other relative, a friend or one’s attorney.  Depending upon the closeness of the relationship and the degree of trust, the principal will decide whether the authority should be immediate or limited in any way.

sanfran-300x300Tony Bennett was beloved by those young and old not only as a talented singer, but as a World War II veteran and civil rights icon.  His recent death at the age of 96 was not unexpected.  This post will identify the legal issues that may be raised when a person such as Tony Bennett passes.

Mr. Bennett could be considered to have been in a New York State of Mind, having been born and dying in New York State.  He was considered to be well-liked by all, except for potentially his two ex-wives who may have said “I’ve Got You Under My Skin” as they completed their divorce proceedings.  We have posted previously as to whether an estranged or divorced spouse has the legal right to inherit.  Even a promise to include an ex-spouse in one’s Will, as may be desirable in resolving a divorce proceeding, is not enforceable in New York.  Unless Mr. Bennett had explicitly left assets to his ex-wives in a Will or Trust, these ex-spouses would not have a valid claim to his estate.

The admired crooner was married to his third wife at the time of his death.  Potentially his most recent wife had a conflict with his four children, whose mothers were either his first or second wives.  In addition, two of his four children assisted Mr. Bennett in his career, so he may have wanted to leave them more assets or they stand to gain other financial benefits from having worked alongside their father.  It should be noted that Mr. Bennett’s two daughters were also the children of his second wife and but were born before their marriage.  If Tony had no Will, an estate administration would need to be conducted and proof of paternity would need to be established so that his daughters could legally inherit from his estate.

rise-help-up-support-climb-300x192This post comes with a “spoiler alert” warning.  Like many, this author has become obsessed with the Max show Succession, not merely as a television viewer, but for the legal issues raised by the storylines.  We  will discuss the multiple legal issues covered in the Emmy award-winning series.

The jaw dropping images of real estate are practically a character on the show.  The townhouse on Fifth Avenue across from the Metropolitan Museum of Art was the primary residence of Waystar/Royco’s founder and patriarch Logan Roy.  The home was shared with his third wife, who obtained the property in their divorce.  After Logan’s death, Marcia and Logan’s oldest child Connor were visiting the home.  Marcia and Connor started a discussion whereby Connor expressed interest in buying the home from Marcia, who said that she was looking for sixty to seventy million dollars.  Connor said he would pay sixty-three million dollars, and they verbally agreed to the deal.  A verbal agreement to sell real estate is not binding in New York State.  The statute of frauds requires that contracts pertaining to real estate be in writing.  Marcia could have backed out of her agreement to sell the property to Connor.  However, Connor and his wife were in control of the townhouse in a later episode, so Marcia must have followed through with her oral agreement to sell the property to Connor.

Estate matters also figure prominently in the series.  Connor introduces a “sticker system” to distribute personal property in the townhouse that he purchased.  Logan’s children were to affix stickers to personal property in Logan’s townhouse to indicate which items they wanted.  Then, the “second tier bereaved,” such as Logan’s last mistress, would have an opportunity to select items.  While this may be a relatively good method with which to distribute personal property, the question arises as to why Connor was in charge of this process.  Was he nominated as Executor of Logan’s estate?  It would not be realistic for Connor to have been officially appointed as Executor within days of Logan’s death.  Another possibility is that Marcia owned these items as part of the acquisition of the townhouse in her divorce and that she decided to sell the items to Connor along with the townhouse.

collectible-figures-values-300x223Some of our clients have valuable personal property, such as artwork, antiques, baseball cards, figurines and the like.  They may wish to leave such collections in their Wills to a particular person.  In other cases, none of the potential survivors is interested in possessing and storing such a collection.  This post will address the best means by which to manage collectibles, known as personal property, in estate planning.

Collectibles by their nature are of interest mostly only to the collector, who may scour small stores and dealers during his lifetime to obtain such items.  The thrill is in the hunt for the unique baseball card that may complete a set and to then enjoy the display of such item in one’s home.  Collections of personal property are not only a financial investment to the collector, but provide a lifetime of enjoyment to the collector.  Potentially one family member may be interested in acquiring the collection after the person’s death.  In such a case, an experienced attorney will advise that the collection be appraised and mentioned specifically in one’s Will, so that it is clear that a particular person should inherit the collection.  Then, the person who will receive the collection may receive less from any remaining inheritance to compensate for the value of the collection.  For instance, if one child is interested in antique furniture owned by her mother, the mother or the Executor eventually appointed by the Surrogate’s Court can have the furniture appraised.  The child who will receive the furniture may receive less cash from the balance of the estate to compensate for the value of the furniture, so that the estate distribution is fair to all involved and the person who appreciates the collection receives it.

Another option is for the collector to give portions of the collection to family members during his lifetime, so that he has the satisfaction of observing the appreciation of family members who receive the items.  This is also helpful if the collector is downsizing and selling her home and may not have room for such a vast collection in the new home.

We were “all shook up” to hear the surprising news of the untimely death of Lisa Marie Presley, the daughter of Elvis Presley.  Ms. Presley passed away in California.  She may have had a Will that directed the disposition of her assets.  This post will address the legal result if Ms. Presley had died in New York without a Will, legally defined as intestacy.

Ms. Presley could not “help falling in love.”  She was engaged five times and married four times.  All of her marriages ended in divorce.  Her former spouses would not inherit under the New York intestacy statute.  Since Ms. Presley was survived by her children, her Mother Priscilla Presley, who also survived her, would not inherit any of her assets.

The intestacy statute would provide that Ms. Presley’s surviving children would inherit her entire estate.  Tragically, Ms. Presley’s son predeceased her.  If her son left a surviving child, such grandchild would inherit the son’s share.  If there was no surviving grandchild, then the son’s share lapses and is to be shared with his surviving siblings.  It should be noted that two of Ms. Presley’s daughters were only fourteen years of age at her death.  As a result, a Guardian is likely to be appointed by the applicable Court to manage the inherited assets on behalf of the underage children who cannot inherit outright.  Guardianships typically last until the child is 18 or 21 years of age, depending upon the circumstances.

hockeyIt is not uncommon for children from a prior marriage to have a legal dispute with a surviving spouse concerning a Will.  The New York Post recently reported that the children of deceased hockey legend Rod Gilbert have sued his surviving widow concerning the disposition of his estate.  Hockey Hall of Famer Gilbert was a beloved Rangers player, known as “Mr. Ranger,” and was the all-time leader in goals and points for the blue shirts.  He accumulated a significant collection of memorabilia and enjoyed material wealth.  He married his second wife thirty years before his death.

The children from his first marriage have alleged that the stepmother pressured Gilbert to change his Will on his deathbed to eliminate them from receiving the collectibles and substantial cash.  There has been a claim that, during his lifetime, Gilbert promised to leave his children particular assets and that the documents prepared in his final days did not reflect promises made.  Suspiciously, the Gilbert home was sold less than two weeks before his death and the proceeds were then “not available” to pay monetary bequests to the children.

The stepmother in this case presented a letter allegedly signed by Gilbert that reversed the prior bequests of memorabilia to the children and instead gave them to his wife.  It should be noted that a letter is usually not valid to change the terms of a properly executed Will.  In order for a Will to be legally valid in New York State, it needs to comply with the Statute of Wills.  In addition, any amendment or revision to a Will needs to be accomplished by a Codicil that also needs to comply with the Statute of Wills in order to be legally valid.  A less formal “letter” is highly unlikely to comply with the requirements of a Codicil in order to amend the Will terms.

crashNews outlets have reported on the untimely death of actress Anne Heche.  The late actress was allegedly driving under the influence of alcohol and illegal drugs when she crashed into a Los Angeles area home.  She died shortly thereafter from injuries suffered in the crash. As to the unlucky homeowner, the crash caused a fire that destroyed the house and all of the possessions inside.  The homeowner has sued the Heche Estate for damages suffered in the crash.  This post will address how an Estate is to properly handle legal claims.

This author is not privy to details as to whether Ms. Heche had a Will.  If she had died in New York, her estate would be managed differently depending upon whether she had a Will.  A person can engage the services of an experienced attorney to prepare a Will and other estate documents that memorializes one’s wishes for the distribution of assets upon death, names those persons to serve as Executor, names guardians for minor children and other details.  When there is a Will in New York, one’s estate will be handled through a probate proceeding in Surrogate’s Court.  Should a person not have a Will, the estate will be distributed according to the law of intestacy.  In the case of intestacy, the surviving relative in the closest degree of relationship will serve as the Administrator.  Administration proceedings are also brought in Surrogate’s Court.

An Executor or Administrator, as the case may be, is a fiduciary and is obligated to address claims made against the Estate and pay liabilities before making distributions of assets as directed in the Will or in accordance with the intestacy statute.  The homeowner who has sued will have her claim addressed by the fiduciary appointed in the Heche Estate, who will most likely seek legal advice and respond to the Complaint.  The fiduciary’s role is to responsibly address claims, evaluate if they are legitimate and attempt to have them reduced before paying such claims with estate assets.  That way, the fiduciary is also preserving estate assets, which is another legal obligation of a fiduciary.

crownLong-time royal watchers were dismayed to hear the news of the death of Great Britain’s Queen Elizabeth II.  This author and others admired Her Majesty’s service to her country and her longevity.  While we obviously do not have royalty in the United States, many of us consider our ancestors to be royals on a personal level.  This post will address the unexpected parallels between the distribution of the Queen’s assets and property interests that may be held by our non-royal clients.

Queen Elizabeth II enjoyed the ownership and use of multiple castles.  Even though most Americans do not own castles, we still use the expression “a man’s home is his castle.”  This begs the question, who will receive one’s castle after a relative’s death?  If the property is held as joint tenants with right of survivorship, the last owner to survive will own the entire property automatically by “operation of law.”  This result is not unlike the likely result that The Queen’s castles are now automatically owned by her son who is now known as King Charles III.  Further, if the owners before death were husband and wife, the property is considered to be owned as tenants by the entirety, automatically leaving the property to the surviving spouse.

If the “castle” is not owned by marital spouses or as joint tenants with right of survivorship, then ownership will be determined by whether the deceased person had an experienced attorney draft a Will.  If there is no Will, then the laws of intestacy and an estate administration proceeding will be necessary.  Intestacy is similar to the rules of succession and inheritance by royals, in that the person(s) in the particular decree of relationship stand to inherit the subject property.

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