New York Real Estate Lawyers Blog

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.