Articles Posted in Wills & Trusts

It 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.

News 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.

Long-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.

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.