BlogRead the Latest News

 

R.I.P. Nelson Mandela

I remember this incredible Nightline closing clip featuring Tracy Chapman’s “Freedom Now” from the week Nelson Mandela was released from prison in 1990.

Bonus music video – “Free Nelson Mandela” by Special AKA.

 

It’s All About Francesca

Julie Harris, the 5 time Emmy Award winning actress, died in August.  Her will named a minor soap opera actress, Francesca Rubino, as the co-executor of her estate.  Her will also contained a codicil stating that if her son, who lived on her property and who is to receive the bulk of his estate, threatened to harm the co-executor, he would be disinherited.  The son was unable to see his mother the last 3 years of her life.  Friends of Ms. Harris claim that Ms. Rubino wormed her way into Ms. Harris’ life and fired all of her long time employees including the gardener, housekeeper, and attorney. The new attorney, who presumably would earn $100,000 as co-executor, maintains that they are merely disgruntled former employees.

Several points:

1.  Wills can generally be challenged on the grounds of lack of mental capacity or undue influence.  An indicia of undue influence is where a non-relative receives money to the exclusion of children or one child receives a disproportionate amount.

2.  The son has standing to contest the validity of the will, but if he still receives most of the estate and the only issue is who will serve as executor, he might not be inclined to contest the will and lose money in legal fees.

3.  I have never seen a codicil threatening to disinherit someone, much less a child, for threatening anyone.  Codicils usually change the amounts to be received by a beneficiary.

4.  Who can blame the son for making a threatening gesture to someone described as “very alluring but very manipulative” and “who had a saintly look that was overboard”?

The Grand Disillusion

The author of this article in the New York Times discusses how little her deceased mother’s personal belongings were worth.  She was fortunate in that some of the items – a silver German tea service, a French painting, and  a friend’s Tiffany lamp – are more common in New York than in other places.

 Among the salient points:

 1.  In a best case scenario, contents might be worth 1/10 the value of the house.

2.  Non-Baccarat crystal goblets are not worth packing up.

3.  English and Early American antiques are not as valued as they once were.

4.  Non-Steinway pianos are not very marketable.

 My quick points:

 1.  I always advise my clients to not argue with siblings over personal property – the sibling relationship is far more valuable than any particular item.

2.  Tastes in furnishings and household items change which leads to declining values in most items.

3.  In addition to one’s personal belongings being worth less than expected, one’s children are probably not as smart as one believes either.

Happy Thanksgiving

Happy Thanksgiving.

Road Kill Leads to Will Contest

Close to home, the four daughters of the founder of Griffin Industries, an animal rendering and food recycling company located in Greater Cincinnati, are suing 3 of their brothers for allegedly cheating them out of their inheritance.  They are also suing the law firm that advised the company and several family members.  To make their claim, they are relying on the federal RICO statute which was crafted to combat organized crime in the 1970s and alleging that their brothers were part of a racketeering enterprise.  Their mother died in 1985 and their father died in 1995.  The father had executed a trust in 1967.  Griffin Industries was sold for $840 million in 2010.

Many points:

1. In the interest of full disclosure, I used to work for the law firm being sued in the case.  I have no knowledge of the matter other than what is in the linked article.

2.  In the small world category, my law school professor, Robert Blakey, crafted the RICO statute when he was a Senate staffer and the issue of civil RICO actions was a frequent law review topic in the mid-80s.

3.  At some time between 1967 and 1995, the father should have revised his will and trust to reflect the current status of the business, his current finances, and the differing contributions of the family members to the business.

4.  The case is being litigated in federal court under a RICO theory presumably because the statute of limitations for litigating a will and trust contest has long since expired.

5.  With $840 million to be divided among family members, one would think that there were enough spoils for everyone to get along especially those not involved in the business operations and its success.

6.  $840 million is an incredible number for a business that started with collecting road kill.  Rendering seems to be the ultimate recycling business.  And most profitable, too.

No Signature, No Witnesses, No Worries

An Australian court recently ruled that a will typed in the notes section of an iPhone is valid.  The will was prepared by a man who committed suicide shortly thereafter.  The will was not witnessed nor was it signed.  Nonetheless, the court deemed it valid.

Several points:

1.  Thanks to Charlie Young, the attorney who represented the estate of the deceased, for sending me this news.

2.  Such a will in Ohio would not be valid because it did not meet the requirements of being witnessed by 2 individuals and signed by the deceased.  Presumably, if 2 witnesses and the deceased had signed their names electronically, it would have a chance of being valid in Ohio.  I would not want to represent the test case, though.

3.  If the will had been written on a Microsoft tablet, it would most likely not have been found valid because no one would have figured out how to use the tiles in Windows 8.

Miscellany

Slow times in the estate planning/probate news arena.  I have 3 quick hits tangentially related to estate planning and probate, albeit with minimal lessons.

First, the estate of the Tin Man’s son is suing Warner Brothers for the proceeds of a documentary about The Wizard of Oz.

The Tin Man’s son died in 2001at the age of 68. Unlike humans, copyrights seem to last forever.

Second, last week was the 65th anniversary of the death of a Canadian man who wrote his will on the under side of a tractor under which he was pinned. The will which said “In case I die in this mess, I leave all to the wife” was valid.

In Ohio, the assets of a person survived by his spouse and children from that marriage who be distributed by law to the spouse. One less thing to worry about if ever pinned under a tractor.

Finally, the estate of sculptor Alexander Calder, who died in 1976, is suing the estate of his art dealer who died 5 years ago for fraud. The suit involves allegations of Swiss bank account, sale of forgeries, and payments of $5 million in hush money.

Yes, $5 million in hush money. Apparently, there is ample money to be made in high end art for artists and their representatives.

His Mom Will Not Be Happy

Donte Whitner, safety for the SF 49ers, has filed an application to change his last name to Hitner.  The hearing in Cuyahoga Probate Court is set for Nov. 19.   His application for the change says it will be commercially favorable to him in various business ventures (and presumably in terms of increased jersey sales).

Two quick points:

1.  In a bit of irony, the 49ers play the Washington Redskins, a team under siege for not changing its name, in his first game after the name change.

2.  Unless the white supremacist market is larger than I believe, I doubt there is huge demand for a jersey with a name that could easily be mistaken for “Hitler.”

If You Have to Ask, . . .

An individual who is a beneficiary of his uncle’s estate asked the Ethicist at the NYT if he should follow his uncle’s instructions to donate several thousand dollars to various charities.  The instructions were made in a letter accompanying the will.  The beneficiary perceived the groups to be “extremely right wing” and was offended by some of them.   The Ethicist instructed the beneficiary to make the donations or not take any money.

Several points:

1. Leaving money to someone with the expectation that he will share it with someone else or a charity is not legally binding nor a good idea (see the comment about not legally binding).

2.  Charitable bequests should be made in the will so they are carried out (and so charitable deductions are effective).

3.  Expecting anyone from California to donate money to a conservative cause is tilting at windmills.

Something’s Got To Give

The estate of Herb Stern, the photographer famous for taking the Last Sitting photos of Marilyn Monroe 6 weeks prior to her death, is poised for a will contest. The 83 year old executed a will in 1997 which left half of his estate to his children from his first marriage with the other half establishing a foundation. He subsequently executed a will and a trust in 2010 which left his $10 million estate, save for a few cash bequests to his children, for the benefit of his 44 year old wife, whom he had secretly married in 2009.

Several points:

1.  It is perfectly logical for a man to alter his will to provide for his wife who was not in his life at the time of the will he signed 13 years prior.

2.  The new will has a no contest provision stating that anyone contesting the will will forfeit their inheritance.  If this clause is coupled with significant bequests to the children it could curtail a will contest by them.

3.  Secret marriage?  Perhaps Mr. Stern and his wife were channeling Marilyn Monroe  film titles.  Instead of “We’re Not Married” they decided to “Let’s Make it Legal” because Stern was only “As Young As You Feel” and followed the axiom that “Gentlemen Prefer Blondes.”  Once the facts are revealed, “Something’s Got to Give.” My apologies in advance.

Catching UP

I had some technical difficulties (thanks spammers) with the blog which rendered it impossible for me to post in this forum for 2 months.  I was able to post in the other forums (Facebook, Google+, Tumblr, and Blogger) though. I will re-post the missing posts simultaneously.

If At First You Don’t Succeed, . . . . Forge? (No, Just Kidding).

This is out of a horror movie.  A Kansas City attorney was recently charged with murder for killing her father’s girlfriend of 20 years.  Her father was shot and his girlfriend was repeatedly stabbed then shot at their vacation home in 2010.  Her father did not die from his wounds.  The woman then allegedly forged a health care power of attorney so she could withdraw his medical support 4 days later.  She was charged with his murder a year ago.  Apparently, she was concerned that her father would leave all of his assets to his soon to be wife.  In an odd but clarifying footnote, her mother (her father’s first wife), had spent 11 months in jail for stealing $100,000 from her own mother by forging a power of  attorney 10 years ago.

Points?

1.  If the father had wanted to preserve assets for his daughter he could have executed a pre-nuptial agreement to set forth which assets he would leave his soon to be wife (and what would be left for his daughter).

2.  Along the same lines, he could have executed a trust to provide for his new wife while leaving the remainder to his daughter after the wife’s death.

3.  Preparing a health care power of attorney to address medical needs is essential.   So is ensuring that the person with that responsibility has a copy of the document and is aware of the duties.

4.  When a daughter resents her father and his girlfriend, and her biological mother has already stolen from her own mother, an active alarm system  and a multitude of security cameras would be a worthy investment.  And perhaps a Kevlar jacket.

Visits Trump Cards (Huguette Clark Estate Pt. 3)

I previously blogged about the will dispute over Huguette Clark’s fortune, here and here.  Now the issue is set for trial in the next week.  I snarkily  wrote “When a distant relative is a Gilded Age heiress, a Christmas card and occasional phone call provide a great return on investment.”  It turns out that her great-grandniece did send her a Christmas card for 33 years until her death and was still excluded from the will.  Actually, the great-grandniece and other distant relatives were included initially in a 2005 will but then excluded by a revised will she signed a month later.  However, no relative saw Ms. Clark between 1968 and her death in 2011.  The excluded relatives are challenging a will which left most of her fortune to her caregivers, her support network (including her attorney), and the hospital in which she resided for her last 20 years.

Several points:

1.  1968?  43 years before her death?  Those relatives were not important to Ms. Clark.  Nor was she to them.

2.  The grounds for challenging a will are either lack of mental capacity or undue influence.  If she was not competent to execute the second will, it is doubtful she was competent the prior month to leave everything to the relatives.

3.  The lawyer drafting a will should never be a beneficiary of the will.  He should bring in another attorney to prevent the appearance of undue influence by him.

4.  My guess (which based on my prior snark and other poor predictions in this blog is probably wrong) is that she reflexively signed a will leaving her assets to her relatives even though she had not seen them since the RFK and MLK assassinations and the moon landing, then reconsidered and decided to leave her assets to people who had made a difference in her life.

5.  More bloggers, and journalists, should admit their poor prognostication abilities.

Sports, Not Death

Paul Daugherty of the Cincinnati Enquirer has once again graciously allowed me to write his blog today. Link is here.

I See Gullibility

An English woman is a key witness against a Florida psychic on trial for defrauding people of $25 million.  The woman sought the assistance of the psychic when her husband was diagnosed with pancreatic cancer shortly after leaving her.  The psychic was supposed to prolong the estranged husband’s life by two years and have him return to her if the woman divested herself of  the “tainted” money she made when selling the castle she and her husband owned. In a future plot line from Downton Abbey, when the husband died six months later, he left his wife no money in his will and authorized a servant to use his frozen sperm to have an IVF child.  In spite of the failure of the psychic to accomplish her goals, the woman continued to give money to the psychic ($900k  total) to prevent the servant from bearing a child with her late husband.

Several points:

1.  In Ohio, a husband may not disinherit his wife.  The wife is entitled to at least 1/3 of the assets under his will.

2.   When a deceased spouse has left a mess of his personal affairs, it is best to seek the counsel of an attorney, not the psychic whose shop is across the street from one’s hotel.

3.  Never tell a psychic how much money one has, do not believe in tainted money, giving money to a psychic does not untaint it . . . Heck, just avoid psychics in general.

4.  When an estranged husband wants out of a marriage then dies shortly thereafter authorizing a servant to conceive his child and tries to disinherit his spouse, and one ends up with $2 million plus one -third of his estate, do not be mournful and hire a psychic.  Be thankful the cad is out of one’s life.

Don’t Stop ‘Til You Pay Enough

I previously blogged about the income earned by Michael Jackson’s estate since his death.  His estate is now embroiled in a dispute with the IRS over the value of his estate and the commensurate estate taxes owed.  His estate representatives claimed a total estate value of $9 million on his estate tax return while valuing his image and likeness at only $2,000, while the IRS values the image and likeness at $434 million and the total estate at more than $1 billion.

Several points:

1.  This issue is different than paying income taxes on the earnings since his death.  Those taxes have presumably been paid.

2.  The IRS valuation seems very high while the estate value seems too low.  MJ had borrowed extensively prior to his death to support his lifestyle, including his zoo, and was planning  a series of London concerts to pay off the debt.   The debt would reduce the value of his estate by $500 million or so.

3.  I would love to negotiate with the estate and buy the right to market MJ’s image at their stated value of $2,000.

4.  Estate taxes are levied on the value of assets at the time of death. At the time of his death, MJ was not listed as a billionaire by Forbes, had not had an endorsement since 1993,  and was not on Forbes’ list of top earning musicians in 2008 the year prior to his death.  No one could predict how popular he would be in death.  Child molestation rumors, erratic behavior, dangling babies from balconies, and continual disfiguring plastic surgery have a way of frightening advertisers, shrinking a fan base, and reducing earnings.

5.  The Police earned $115 million in 2008 and were Forbes top earning artist of the year. Huh?

Going for a Touchdown When a Field Goal Would Have Sufficed

Jim Carlen was one of the winningest football coaches at the University of South Carolina.  His children from his first marriage, which ended in 1980, are suing his 2nd wife of 29 years alleging that she influenced him to leave all of his estate to her. 
His 2007 will and all prior wills had included the children from his first marriage.  The 2010 will, executed one year after he was diagnosed with dementia, left everything to his widow.  In 2011, he executed a power of attorney in favor his wife which she purportedly used to transfer assets to herself prior to his death 
Several points:
1.  A will executed by an individual diagnosed with dementia that substantially changes his estate plan will always be challenged by the beneficiaries of the prior will.
2.  The coach could have provided for both his widow and children by leaving assets to her in a trust and having them distributed to the children upon her death.
3.  Proving that pigs get fat and hogs get slaughtered, the widow would have been better off ensuring that the children received something rather than seeing them disinherited entirely.
4.  45 wins constitutes the third most wins at South Carolina?  That might explain the one conference championship it its history.        

Mubarak and Marshall

Anthony Marshall, the 89 year old son of Brooke Astor, was paroled from prison after serving 8 weeks of a 1 -3 year sentence for stealing millions from his socialite mother when she was suffering from Alzheimer’s.   Mr. Marshall’s health problems include Parkinson’s disease and congestive heart failure. His lawyers said recently that he could not walk, stand, clean himself or dress himself and had potentially life-threatening swallowing issues. One of the issues for Mr. Marshall was whether he should have been incarcerated at all given his age.
Estate planning lessons?
I am not really certain.  Stealing from a disabled mom is obviously a bad idea and is subject to punishment. Beyond that?   Incarcerating an 89 year old seems unwise although given the amounts involved it was probably necessary.  The early release seems humane. If Egypt can release former president Mubarak this week, NY can certainly release Mr. Marshall.

Back After Vacation and Technical Problems

Sorry to be away so long.  Two weeks out of the country, followed by a dead hard drive and other tech issues.  Quick vacation pic from Machu Picchu.  New post to follow.

“What is Per Stirpes?”

After I ask clients if they have reviewed drafts of their wills, the question they most often ask me is “what does per stirpes mean?”  It helps that the term is underlined. In short, it means by representation.  If a beneficiary dies before the decedent, that beneficiary’s heirs will divide his or her share.A recent Nebraska case, Estate of Evans, recently interpreted per stirpes in the context of an individual who died without a will and was survived by a nephew from a pre-deceased brother and 2 nieces from another pre-deceased brother. The court held that the 3 individuals would share equally because the division into shares began at the generation with living heirs.

Several points:

1.  In Ohio, the division would be made at the level of the pre-deceased brothers so the nephew would receive half and the nieces would each receive one quarter.

2.  A common fallacy among non-attorneys is that if an individual does not have a will, the assets will escheat to the state.  States have statutes that provide who will inherit assets if there is no will.  Only if there is no one somewhat directly related to the decedent will the assets escheat to the estate.
3.  It is always better to prepare a will to determine who inherits assets rather than leave the distribution to a state statute.

4.  It is rare to be able to use the term escheat twice in the same post.

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.