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How Am I Doing? Quite Well, Apparently.

Former NYC Mayor Ed Koch was famous for walking the streets and smiling at people while asking them “How am I doing.”  His will was admitted to probate court this week.   It left $100K to promote government and public service and left most of the remaining balance of $10 million to his sister and her children.

Several quick observations:

1.  A bequest of less than 1% of the estate of a public servant to promote public service seems puny.

2.   There are few, if any, other charitable bequests.  So much for giving back.

3.  A $10.5 – $11 million estate after being a mayor?  Public service is the start of the path to enormous wealth for many.

4.  The large estate reaffirms that it is easier to accumulate significant wealth when one doe not have children.




Mother From Hell

Viciously cruel mothers exist outside of Disney tales.  An NY couple with a net worth of $250 million adopted an infant girl, Emily, from China in 1996.  As part of the adoption, they promised to provide for her in their estate planning documents and to create a separate trust for her.  Sadly, the adoptive father died soon thereafter, leaving his much younger wife with Emily and their 5 biological children.

The widow, who has gained notoriety by spending $33 million dollars to purchase 10 of the Thimble Islands in Long Island Sound, claimed to have difficulty with Emily’s behavior and enrolled her in a special needs school.  This was after allegedly making her sleep in a tent outside for a week for misbehavior and not including her win family dinners with the other children (and after adopting and giving up another son).  Eventually, the widow allowed Emily to be adopted by a different family.

Te new adoptive parents eventually learned about the trusts created when Emily was adopted and sought a court order enforcing them.  The widow fought the order but an NY court held that the father had intended to include her in his estate.

Several points:

1.  The widow must have taken parenting classes from Cinderella.

2.  The Thimble Islands are story book-esque (see the pictures).

3.  Emily’s $40+ million future inheritance should buy her a lot of therapy.  I suspect she will need it.

Tupac’s Estate

Rapper Tupac Shakur was killed in 1996.   His estate has released 6 posthumous albums and authorized a hologram likeness of him to perform at last year’s  Coachella Music Festival.  Now, his mother has turned over management of his estate to a new group of managers who have worked with the estates of other artists such as Janis Joplin, Otis Redding, and Henry Mancini.

The new managers have thankfully ruled our a hologram tour, but are considering the use of his music in a Pink Floyd-esque laser light show.   Yawn.  Almost everything Tupac recorded has been released in the past 16 years and only snippets of recordings remain in the vault.  Nonetheless, his mother stated of the management change , “I believe it is our responsibility to make sure that Tupac’s entire body of work is made available for his fans.”  Translation:  it is her desire to make as much money as possible off her son’s music.

Someone Will Cry, Cry, Cry

It has been a busy month for the James Brown estate.  First a federal court rejected the attempt of his former manager to insert herself into his estate affairs.  Now, the South Carolina Supreme Court has rejected a settlement regarding the division of his estate that was brokered by the SC Attorney General and said that the estate must be distributed per Mr. Brown’s will (i.e. most to the trust for its charitable beneficiaries).

Quick facts.  The Godfather of Soul left most of his estate to a trust for the education of needy children.  His relatives asked the probate court to remove the trustees of the trust after the trust assets dissipated to almost nothing.  I suspect that they also challenged the terms of his will.  The SC Attorney General (on behalf of the trust) convinced the parties to settle the dispute with  the trust receiving half of the assets, Brown’s widow 1/4, his adult children the final 1/4 and the trustees replaced by other trustees who made lucrative licensing deals for the trust.

Several points:

1.   The SC Supreme Court is correct – the terms of the will should be followed.  Estates are not like other business deals or disputes where the intent of the deceased can be negotiated.  The intent as expressed in the will must be followed.  Otherwise, people would not have confidence in making wills or leaving assets to charity.

2.  The settlement does seem to have been beneficial to the estate because the new trustees were able to increase its value from near zero to somewhere between $5 million and $100 million (nice specificity on that).

3.    The estate owed $20 million to a bank borrowed for a European tour.  Apparently lunacy in the lending markets in 2006 was not confined only to the sub-prime housing market.

When Dad Is Accused of Murder

A Rhode Island man was accused of drowning his wife.  His conviction in the British Virgin Islands was later overturned.  However, his wife’s parents sued him for wrongful death and won a $2.8 million judgment against him.  The man was the designated beneficiary of his wife’s will.  His children from a prior relationship were the contingent beneficiaries.

After the wrongful death judgment, the estate executor sought to have the man removed as a beneficiary of his wife’s will under the RI Slayer Statute.  The executor also sought to have the man’s children removed as beneficiaries under the theory that they should not benefit from the misdeeds of their father.

The RI Supreme Court recently upheld a ruling against the children which prohibits them from inheriting under their step-mother’s will.   One of the rationales in the decision is that the children continued to maintain their father’s innocence and said they would use the assets to defend him.

Several points:

1.  I think the  court is wrong.   The children were specifically listed as beneficiaries if their father were to pre-decease them (or allegedly kill his wife).     As such, they are not “inheriting through him” which is prohibited under RI law.

2.  Is it me, or does it seem that anytime a female US citizen drowns in a foreign country that a murder allegation arises against the husband?  You will not see me swimming outside the US.

3.  If your father allegedly murders someone and you will benefit from his misdeed, do not tell people you will spend the inheritance on his defense. Keep your mouth shut and spend the money quietly.


Mindy McCready’s Children

In the aftermath of Mindy McCready’s suicide, a key legal question is who will receive custody of her children – six year old Zander and   10 month old Zayne?  The issue is complicated by Zayne’s father pre-deceasing Mindy last month while Zander’s father, Billy McKnight, lost custody of him years ago.

When there is a surviving parent, a court will usually award custody to the surviving biological parent.  When there is no surviving parent, a court will generally award custody to the person designated in the deceased’s will.  I have not read anything indicating whether Ms. McCready left a will, although I doubt a woman living in a garbage and feces strewn house would provide for her post-death affairs.  Here, the commentariat believes that Ms. McCready’s mother and step-father will receive custody of both boys.  I wish them all luck, love, and peace moving forward.  They all deserve it after the tumult in their lives.

This news should serve as a reminder for everyone to prepare a will so that their wishes for the custody of children post-death are not left to chance.

The Morning Line

Paul Daugherty graciously allowed me to guest write his blog this morning.  Link is here.

Prepare a Will, Not a Letter

I confess to never having heard of Latin music and Mexican TV personality Jenni Rivera prior to her death in a plane crash in December.  I similarly confess to never having heard of her estranged 3rd husband, Esteban Loaiza, who plays for the Detroit Tigers.  So why am I blogging about them?

Rivera and Loaiza separated two months prior to her death.  After separating, River left a detailed letter to her sister asking her to take care of her children and business enterprise valued at $25 million in the event of her death.  It is unknown if she had other estate planning documents or a pre-nuptial agreement.

What lessons can be learned from her estate?

1.  When marrying for a 3rd time, one should definitely have a pre-nuptial agreement.  If Dennis Hopper can do this, others should, too.

2.  When leaving on a trip, consult an estate planning attorney about preparing a will/revised a will.  A handwritten note is generally not effective.

3.  When separated from a spouse, revise the estate plan immediately and implement a trust to preserve the assets for the children.

4.  $25 million net worth?  Apparently there is money to be made on Mexican TV and Latin radio for tumultuous personalities.

Where Are They Now? Collecting an Inheritance.

An Illinois man who lived alone in a farmhouse with no running water, bathed in a creek, and did not bathe when it was frozen, died last summer of a heart attack.  His will left his estate to two actors he had never met – Kevin Brophy and Peter Barton.  Brophy’s biggest role was as a man who had been raised by wolves in “Lucan” while Barton  had been on the “Young and Restless.”  Apparently the deceased had written the actors in the past and they had responded with a thank you and watch me in my upcoming appearance note.  The deceased considered them friends.

Several points:

1.  Simple acts of kindness and respect reap dividends.

2.  For will purposes, there is a difference between eccentric and mentally incompetent.

3.  I am not sure that either Brophy or Barton would qualify for an episode of VH1’s “Where Are They Now?”

4. Lucan?  I vaguely remember it from my youth.  I certainly did not have a poster from it for years as did the decedent.  This was the poster in my teenage room.



Talking Loud and Saying Nothing

James Brown died in 2006.  His estate moved a step closer to settlement this week after  a federal lawsuit filed by his former business partner was dismissed.  After years of litigation, the estate was to be divided between his wife, his heirs, and his “I Feel Good Trust.”

However, his former pr woman and song writer claimed to have worked with him on the child welfare trust in the 1980s and that his intent was to leave all of his assets to it.  She claimed that the South Carolina attorney general had ignored her, that 100 attorneys had refused to take her case because they were politically intimidated, and that she has a right to be heard and to exert control over the distribution of funds.

Several points:

1.  The court was correct to dismiss the case.

2.  How a probate related case which is handled at the state level lasted 16 months in a federal court is perplexing.

3.  An estate plan can easily change multiple times over 20 years so what James Brown wanted in 1980 could differ greatly from what he wanted in 2006.

4.  It is advisable to ensure that estate planning documents reflect current wishes.

5.  Sorry, sweetheart, but no one has “a right to be heard”  nor do they have the right to exert control over funds unless they are the trustee.   You were simply channeling one of James Brown’s hits.





Planning For Pets

Leona Helmsley created the most famous pet trust of all time when she left $12 million to her dog (which died earlier this month).   One does not have to be a multi-millionaire to leave funds for the care of an animal after death.  However, one should be careful in selecting the right person to care for the animal – the caregiver should not be motivated solely by money.

In one instance, a maid and butler were provided free room and board as long as they cared for a cat.   The vet initially estimated the cat to be 8 years old.  The second time the vet saw the cat, he thought it was 4 years old. The third time he saw it, he estimated the cat to be one year old.  As the co-resident of a house with a cat resembling the Purina Cat Chow cat, I can attest to the physical similarity of most cats.  A more tightly drawn test pet trust wold have prohibited the maid and butler from replacing the decedent’s cat with younger versions.

With the $5.25 million unified credit negating estate tax planning for most individuals, the use of pet trusts in estate planning is one more example of estate planning going to the dogs (and cats).

RIP Stan the Man

After the tawdriness of Tuesday’s post, this piece by Joe Posnanski about Stan Musial provides nice balance.

“We all disappointed someone from time to time,” the Hall of Famer Robin Roberts said when we talked about kids and autographs. “Well, all of us but one.”

“Who was that?” I asked.

“Musial,” he said in a voice that indicated I should have already known.

Mr. Musial exuded class.  We might never see a professional athlete like him again.



Grandma Murders, Grandkids Inherit Millions

In 2009, a Florida woman hired a hit man to kill her wealthy husband.  Because Florida’s Slayer Statute prohibits murderers from benefiting from their misdeeds, the wife was removed as a beneficiary of her husband’s will.  The contingent beneficiaries were her daughter from a previous marriage and a trust for the benefit of the daughter’s now adult sons.  The husband’s relatives are still contesting the validity of the will which has previously been upheld.  Their theory is that the wife unduly influenced the husband into leaving his estate to her, and then the daughter and her sons, by threatening to expose his “amputee porn fetish.”

From my vantage point 1,000 miles north, I do not see how a will which leaves all of the estate to a wife, or to her children if she pre-deceases him, reflects undue influence.  The spouse is typically the beneficiary of  the other’s will.  If a spouse were to engage in coercion, I think the other spouse would next consult a divorce attorney not an estate planner.  It looks like the relatives are desperately trying to negotiate a settlement of a smaller amount.

Also from my Midwestern, suburban, and apparently sheltered vantage point, I was unaware that people could have an amputee porn fetish.


Getting One’s Act Together

In the making lemonade out of lemons department is this story about a woman whose 43 year old husband died after his bicycle was hit by a motorist.  The couple had unsigned wills, no emergency savings, financial accounts with passwords the wife did not know, but some life insurance.  The widow created a web site to encourage others to avoid her financial calumny and to essentially take steps to become a responsible adult by executing a will and other financial documents and by assisting with passwords and other financial knowledge.

When prioritizing allocation of financial resources to major decisions, I recommend the following:

1.  Life insurance.  Provide financial security for the spouse and children.

2. Living will and health care power of attorney.  Do not bankrupt the family because medical decisions can not be made.

3.  Will.  Clarify distributions and designate a guardian.

Somewhat related, the article did nothing to dispel my fear of riding my bike on the road rather than a bike trail.




Real Life Agatha Christie

You might have seen this piece of news. A 46 year Chicagoland man won $1 million in the lottery, but died of cyanide poisoning before he could claim the winnings. The police just started investigating the poisoning. As everyone who watches police/crime TV knows, to solve this crime look for the person with a motive. His widow claims he did not have any enemies. I have not read whether he had a will. If he did not, the winnings would pass via the statue of intestate succession.

In Ohio, if a person dies without a will, his assets will be distributed as follows:

1. If survived by a spouse, all to spouse.
2. If not survived by a spouse, all to children.
3. If survived by a spouse, but children from a previous relationship, $20K and 1/3 to spouse (1/2 if only one child from previous relationship).

Because I do not want to defame anyone, I will keep my probably wrong theory to myself. Instead, I will just say that I wonder how someone not in an Agatha Christie novel can quickly procure cyanide.

Estate Planning and Fiscal Cliff Diving

Happy New Year.  Moving into 2013, my previously mentioned horrible prognostication abilities did not end when 2012 ended.  I did not foresee Congress making the $5 million unified credit permanent.  The unified credit is the amount of money one can give away tax free during life or at death.  Although in some fairness, I am not sure anyone in the estate planning community foresaw it either.

Quick estate planning facts from the fiscal cliff legislation:

1.  Unified credit is $5 million and will be indexed for inflation.
2.  The estate tax rate will be 40%.
3.  The unified credit is portable which means that the first spouse to die does not need a trust to utilize the credit.

For the rest of 2013, I will be out of the prediction game save for Alabama defeating Notre Dame next week (with fingers crossed that I am wrong and ND wins the National Championship).

Thomas Kinkade – Painter of Light, Writer of Illegible Will

My horrible prognostication abilities continue. If my prediction of a Romney landslide and a 9 game losing streak to end the fantasy football season were not enough, my earlier prediction of years of litigation to settle the dispute over Thomas Kinkades’s estate was also wrong. His estranged wife and his girlfriend of 6 months (although she preferred the term “soul mate”), settled their differences this week. No details were revealed.

The primary issue was the validity of 2 illegible handwritten wills made by Kinkade. Far be it from me to cast stones about one’s handwriting, but if someone is going to leave a handwritten will, it should at least be legible.

There Is Gold in the Walls! Part 2

Following up on an earlier post. A woman will officially inherit her reclusive first cousin’s $7.4 million estate after a court ruled that she is his only heir. After the man died, the estate auctioneer found $7.4 million of gold coins in his house.

Several points:

1. When someone dies without a will, the estate does not escheat to the state. Statutes set forth how the estate will be distributed which is generally along the lines of closest living relative.

2. Only one first cousin? That is a narrow family tree.

3. Gold was a great investment for him (actually for his cousin). Apple stock would have been better.

Delayed Parenthood and Estate Planning

With no fiscal cliff resolution imminent, it has been slow in the estate planning news world (but slammed in the estate planning practice). The New Republic had a great article on delayed parenting and the possibility of developmental issues for the children.

Viewing the article through the estate planning prism, I noted the following potential issues:

1. Parents need wills and trusts immediately. The risk of sudden death or terminal illness is greater for a 40+ year old than someone in their late 20s.
2. The trusts might need special needs provisions to protect the children’s governmental benefits.
2. Selection of a guardian to handle a child with even minor developmental disabilities is tremendously important.
4. Because the children are younger when the parents are older, parents need to rely on siblings and friends to handle their affairs until their children become old enough to assist the parents with their affairs.

Of course, estate planning assumes a certain level of personal responsibility and rational thought. I am not sure than anyone desiring children in their 60s and 70s is being responsible or acting rationally with respect to their children.

All About Domicile

This is complicated. Marilyn Monroe died in 1962 in California after she was fired from the film ‘Something’s Got To Give.” For then estate tax reasons, her executors claimed she was a NY resident. The rights to make money from her estate and likeness have been passed down to her estate heirs (and their heirs) over the past 50 years.

Several years ago, her estate sued a photographer for using her likeness for commercial purposes. A court ruled in favor of the photographer and said that there was no right to publicity at the time of her death. The State of California quickly passed a law authorizing a right of publicity and deeming it retroactive and transferable to heirs. The estate returned to court to have the previous verdict overturned. The court acknowledged the new law, but said that it was available only to residents of California. Because the estate had said that Ms. Monroe was a NY resident at the time of her death, the law did not benefit her estate.

In summary,the estate could not have it both ways – taxed as a NY estate, but utilize California laws for protection. Something had to give.

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.