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Big Tips and Big Bequests

Late NYC art dealer, Robert Ellsworth, was in the news recently because he left $50,000 in his will to two waitresses at his favorite restaurant. He also left $10 million, a house in Connecticut,  and $5,000/month to his boyfriend of 50 years who was 17 when he moved in with Ellsworth  The boyfriend is challenging the will because of bequests made in trust to various charities, including Harvard, which would result in the estate planning attorney earning fees for serving as trustee of the trusts.  The boyfriend alleges that Ellsworth was suffering from dementia when he revised his will to include the charities.

Several points:

1.  Presumably a prior will made by Ellsworth was more favorable to the boyfriend because it would be reinstated if the most recent will is declared invalid.

2.  $10 million and $5K/month seems generous, but is barely 5% of Ellsworth’s $200 million estate.

3.  Regarding the attorney serving as trustee of the charitable trusts, I generally decline to serve as executor or trustee for my clients because of perceived conflicts of interest.

4.  If Cher could live with Sonny when she was 16, I guess it was then socially acceptable for the 17 year old boyfriend to move in with the then 37 year old Ellsworth.  Now, Ellsworth would be arrested for being involved with a minor, unless he was Doug Hutchison and she was Courtney Stodden.

5.  With its $32 billion endowment, can we all agree that Harvard does not need a nickel more and should use its endowment to lower its tuition?

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Bury and Not Shred?

A NH woman was sentenced to up to 3 years in jail for digging up the body of her father last year.  He died in 2004.  The woman was miffed that she had been omitted from her father’s will and was convinced her that her family had buried her father’s real will with his body.  She did not find a will but reportedly found a bottle of vodka and a pack of cigarettes in his coffin.

Several points:

1.  I offer to retain the original wills and trusts for my clients.  I never suspected that preventing grave robbing is a good reason for doing so.

2. The deceased was survived by his wife.  It would have been unlikely for a daughter to inherit anything upon his death while her mother survived.

3.  The father would have had good reason to disinherit a daughter who was obsessed with exhuming his body for 10 years while claiming she was doing it for him.

4.  For some reason, the woman never thought that a shredder would be a more effective way for a family to dispose of an unwanted will.

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The Morning Line Again

Paul Daugherty of the Cincinnati Enquirer once again allowed me to write his The Morning Line blog.  I hope you enjoy it.  

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And This Is a Bad Idea?

China’s Ministry of Culture has vowed to crack down on the presence of strippers at funerals.  Apparently, strippers are used to bolster attendance at the funerals.  A well attended funeral is considered a positive sign for the after life of the deceased.

Three quick points:

1.  It is rare when “culture” and “strippers” are used in the same sentence.

2.   China might now be eclipsing the US culturally in addition to economically.

3.  Janice has permission to have strippers at my funeral so come one, come all.

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Will the Senate be Sancho Panza?

In tilting at windmills news, the House of Representatives voted this week to repeal the estate tax. The bill also provides that estates would continue to avoid payment of capital gains tax on appreciated assets even in the absence of the estate tax.

Several quick points:

1. With President Obama annually proposing an increase in the estate tax rate from 40% to 45% and taxing capital gains on appreciated assets, while also lowering the threshold at which taxes become due to $3.5 million from $5.43 million, this bill has no chance of passing during the next two years.

2. Last year, only 5,000 estates paid federal estate taxes, a rate of 2 out of 1,000. I suspect that many of the beneficiaries of an estate tax repeal would be the same Wall Street weenies, most of whom vote Democrat, who already benefit from favorable taxation of their compensation due to calling it carried interest rather than earned income.

3. With this Quixotic bill passed, the House Republicans can now devote their energy to passing a 60th bill to defund or repeal Obamacare.

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Jinxed? No, Just Smart.

Robert Durst is the NY real estate heir who was recently arrested in New Orleans for the 2000 murder of his friend, Susan Berman, who was found dead with a single gun shot wound to her head.  She had supposedly been contacted by police about the 1982 disappearance of Durst’s first wife shortly before her death.  Durst has been married to Deborah Lee Charatan, an ambitious NY real estate broker, since 8 days before the murder of Berman, although they had dated for 12 years prior. Durst was bought out of his family’s trust for $65 million in 2006 and is now reportedly worth $100 million. In the finale of HBO’s series, “Jinxed”, Durst is recorded as saying he killed them all (i.e wife, friend, and neighbor).  Haratan is reportedly living with one of Durst’s lawyers even though she is still married to Durst.

Several quick points:

1.  As a general rule, spouses are not required to testify against each other in a trial so a marriage to Charatan would protect Durst from any testimony by her about his past and where the bodies are buried, so to speak.

2.  If Durst dies in prison, Charatan will likely inherit a large portion of his estate.  It is difficult to entirely disinherit a spouse – in Ohio a spouse is entitled to half the probate estate if there are no children, even if the will provides otherwise.

3.  It is high stakes gambling to be involved with someone suspected of killing a spouse and girlfriend, and who was acquitted of killing and dismembering a neighbor while living as a mute woman, although a payoff of $50 million at his death might make it worthwhile. Emphasis on might.

4.  Living with one of the attorneys of someone who killed and dismembered a neighbor is not advisable due to the possibility of raising his ire and meeting the same fate as his wife, friend, and neighbor.  Living 1,000 miles away would be the smart play.

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Back From Spring Break

Just returned from Beaver Creek/Vail.  New post to follow soon.

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(Wish that were me – it is Jack)

 

May Your Children Always Be Safe

Max Maisel, the college age son of Sports Illustrated writer Ivan Maisel, disappeared last month in Rochester and is presumed to have committed suicide by drowning.  The family held a memorial service for him last Friday.  His father posted his touching eulogy on Twitter today.

Among the humorous anecdotes and moments of parental pain, as the parent of a college freshman, this is the most frightening:  “No parent knows how a child lives at college. Clearly, the disaster we have on our hands is an indication of that. We didn’t recognize the downward spiral Max was in, and that is the burden that psychologists tell us we can’t carry. As much as we tried, as great a job as our friends and family tell us we did, it wasn’t enough.”

Give your children an extra hug tonight.  I will.

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It’s Always About the Team

Former University of North Carolina basketball players received $200 checks this week from the trust of their coach, Dean Smith, who died last month.  The legendary coach instructed his trustee to distribute that sum to each of the players who lettered for him.  The letter accompanying the checks asked the players to enjoy a dinner out on Coach Smith.

No points today – I simply wanted to recognize a final classy gesture by a classy man.

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She Didn’t Know

As news breaks that Bobbi Kristina Brown will be  moved to a long term care facility, one wonders what will become of her estate.  Or at least those of us in the estate planning field wonder.  Her mother, Whitney Houston, left her reportedly $20 million estate in trust for Bobbi Kristina per the terms of her 1993 will.   Bobbi Kristina should have received 10% of that on her 21st birthday last year under the terms of the trust.  Bobbi Kristina’s assets will go to her closest living relatives i.e. her father, Bobby Brown.  The remaining 90% of the trust will be distributed per the terms of Whitney’s will which means to her mother and her two brothers.  Bobby Brown was also listed as a trust beneficiary, as was her father who died in 2003, but is precluded from inheriting from Whitney due to their 2007 divorce.

Several points:

1.   Whitney should have updated her will multiple times – as her daughter aged, after the death of her father in 2003, and after her divorce in 2007.

2.  Distributing trust assets to a child at the age of 21 is a bad idea.  I never draft a trust that permits a distribution prior to age 25.  I also have a clause prohibiting distributions to beneficiaries suffering from drug use, alcohol abuse, or a gambling problem.

3.  Recreational drug use is expensive.  In an age where Lou Reed’s estate was valued at $20 million primarily based on one song (“Walk on the Wild Side”), a $20 million estate seems small for an artist of Whitney’s stature recording in an era of larger royalties and multi-platinum CDs, with a film career to boot. Not that Lou Reed did not do drugs.

 

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Know Thy Neighbor (Before Giving Her Your Will)

A couple prepared wills leaving all of their assets to each other.  The husband’s father was the beneficiary if they both died.  The couple subsequently divorced.   The woman allegedly prepared a new will, which she gave to her neighbor, leaving her estate to her brothers.  That will has not been found.  After the woman died, her ex-husband produced the will from their marriage.  Although the divorce precluded the ex-husband him from inheriting from her, his father was still considered a valid beneficiary.  Courts have ruled that the will from her marriage controls and that the former father-in-law will receive her estate.  The New York Court of Appeals will hear her family’s appeal.

Several points:

1.  Most states have laws treating a divorced spouse as a pre-deceased beneficiary of a will, trust, insurance, and retirement plan.  Those laws do not affect the contingent beneficiaries.

2.  Divorced individuals should immediately update their wills and beneficiary designations as soon as possible during the divorce process.  This is more imperative for those without children.

3.  My policy is to retain my clients’ original documents,  send them copies, and urge them to notify their designated executor of the location of the copies (which have my name on them).

4.  In desperate times, leaving a copy of the will in the refrigerator is always preferable to giving the original will to a neighbor even if it ends up smelling like rotten vegetables, spoiled mayo, or Green Goddess salad dressing.

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Photo by Mark Brewer

No Longer “Blurred Lines”

Following up on a previous post, earlier today a California jury awarded the estate of Marvin Gaye over $7 million in damages to be paid by Robin Thicke and Pharrell Williams for their infringement of Gaye’s song “Got To Give It Up”  in their “Blurred Lines” hit.  Their song has made $17 million,of which $5.5 million was paid to Thicke and $5 million was paid to Williams.

Two quick points:

1.  I still believe that it was silly of Thicke and Williams to initiate this lawsuit to prove their ownership of the song.  It is usually best to let sleeping dogs lie.

2.  I doubt that Williams will be “Happy” with this verdict.

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Never Tell the Kids They Are Being Left Out of the Will

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Happy Birthday, Jack

Happy 15th birthday to my son, Jack.

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Cincinnati Pride (Part 3)

The NYT reported about the revival of downtown Cincinnati real estate.  If you are from out of town, come visit us.  If you are from Cincinnati, brag about us.  It is a great time to be a Cincinnatian.

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Greg Plitt’s Final Run

Greg Plitt, the “star” of Bravo’s “Work Out” show, was struck and killed by a train last month while allegedly filming a commercial for an energy drink which involved him trying to outrun a train.  Sources indicate that his will was not witnessed so TMZ has reported that his father has applied to be the administrator of his $800K estate.

Three quick points:

1.  TMZ is not the bastion of legal accuracy so they are incorrect in stating that Plitt’s father will determine which creditors get paid and “how the remaining money gets divvied up.”  The intestacy statute of California requires that his parents will share his estate.

2.  Any 37 year old should have a will.  It is part of being a grown up even if adolescence is prolonged while being a fitness model.

3. While we know that Plitt fatefully disregarded his parents’ advice about not playing on train tracks, it remains uncertain if he disregarded his parents’ admonitions about not running with sharp objects in his hand, playing with matches, and looking both ways before crossing the street. Sonya Dakar Spa Day 3

Eggs On Ice

Before a young British woman died of cancer 4 years ago, she froze her ovarian eggs.  Her 59 year old mother now wishes to have the eggs fertilized by a sperm donor in an attempt to give birth to her daughter’s child.  A NYC fertility clinic has agreed to assist the woman for $90,000. Britain ‘s Human Fertility and Embryology Authority (HFEA) has denied the woman’s application to receive the eggs and send them to NY because there is no clear evidence of  the deceased’s wishes.

Several points:

1.  I have addressed this issue twice in my practice.  When actual embryos are involved, I specify in the will who will receive the embryos.  With respect to gametic material, the Hamilton County Probate Court allows it to be given to a will beneficiary without it being specifically mentioned.

2.  As a U.S. citizen, I am thankful we do not have a know it all organization like the  HFEA interfering with an individual’s decisions and wishes.

3.  I suspect the legal issues in a case involving frozen sperm would be stickier.

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Let’s Litigate Two!

In playing his entire Hall of Fame career for the Chicago Cubs, Ernie Banks became the most famous and beloved player in Cubs history.  At the time of his death last month, he had been estranged from his third wife for 7 years.  He revised his will several months before his death to leave all of his assets to his caregiver of several years and to nominate her as his executrix.  His sons are questioning the validity of his will while his ex-wife has gone to court to prevent the caregiver from cremating his body and spreading his ashes in Wrigley Field.  His sons and estranged wife both allege he was suffering from dementia prior to his death.  The funeral home which handled his funeral and the cemetery where he was supposed to be buried both state that they have no knowledge about the location of his body.

Three quick points:

1.  A will revised by an individual immediately prior to death which leaves assets to a care giver instead of children is ripe for contesting on the grounds of both lack of mental capacity AND undue influence.  I doubt this will work out in the favor of the care giver.

2.  It is possible that the body of Mr. Banks is located with the head of Ted Williams.

3.  Steve Bartman wishes he could have vanished as effortlessly as the body of Mr. Cub.

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The Facebook Death Mask

Facebook today announced a change in its policy towards the accounts of deceased users.  It will now allow a user to designate a “legacy contact” to manage the account of a deceased user.  Previously, Facebook froze the account of a deceased user which left the account in a state of virtual purgatory.

What you need to know:

1.  To designate a legacy contact, go to Settings, choose Security, and then Legacy Contact at the bottom of the page.

2.  Stupidly, you may not designate a contingent legacy contact so do not choose someone you travel with frequently or who might kill you in a murder-suicide.

3.  Legacy contacts may not alter what you have previously posted.  If something is embarrassing while alive it will remain embarrassing post mortem.

4.  This might all be for nothing anyway.  How fun will Facebook be if one cannot post a picture of himself with the most hated man in Kentucky?

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The Big Messy (Update – Part Trois)

The competency of Tom Benson, the owner of the New Orleans Saints and Pelicans, has been challenged by his family in separate court filings in Texas and New Orleans.  The Texas judge has decreed that Benson needs assistance managing the assets in a Benson family trust.  He appointed two receivers to temporarily replace Benson as trustee.  They are not expected to make dramatic changes to his business holdings.  The New Orleans judge ordered Benson to undergo a psychiatric examination to determine his competency to make the proposed changes to his succession plan.

Three quick points:

1.  This is merely the first round in a likely fifteen round bout.  When billions are at stake, the fight will be long and will not likely be resolved during Mr. Benson’s lifetime.

2.  I doubt that a competent and uninfluenced man would move $25 million out of his family owned bank to a competitor and tell his car dealership manager that he is the only person in San Antonio he trusts.

3.  It is a shame that the court appointed receivers do not have authority to hire a new coordinator for the Saints’s second worst in the league defense.

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Contact Me

All Posts By Jay Brinker

I am an attorney located in Cincinnati, Ohio who practices in the areas of estate planning, probate, asset protection, and small business advice. I make a difficult and bewildering process as simple as possible. Most importantly, I provide "more for less" for my clients.