Blog | Jay Brinker – Cincinnati Attorney

Semper Fi

Monday, 12 May 2014 20:45

A former Marine signed onto Facebook last week and announced he was going to take his own life. He documented the process with graphic photos including a final post that said “Im leakinging good now.” While he lay dying in an unoccupied building, his Marine Corps. buddies were frantically trying to locate him and plead with him to not kill himself. After his death, Facebook did not remove the graphic photos of his final moments because “they did not violate the terms of community service.” Eventually, Facebook temporarily removed the account pending a ruling from his family. In a nutshell, if a person dies, the options for his Facebook account are to memorialize the account or for the family to remove it. Meanwhile, the former Marines used Facebook to reach out to their comrades who might be struggling and offered to drop everything they were doing to assist one another.

Several points:

1. People should address their digital assets in their wills and give their executor the authority to dispose of or transfer the digital assets.

2. One can always count on Facebook to do the wrong thing.

3. The brotherhood of the Marines is awesome beyond description.

Halitosis, Ponzi Schemers, and Politicians.

Tuesday, 06 May 2014 22:20

Rachel “Bunny” Mellon was the heir to the Listerine fortune and also the widow of philanthropist, Paul Mellon, who in turn was the only son of industrialist and Secretary of Treasury, Andrew Mellon. Although she tried to remain out of the public eye, Mrs. Mellon gained some notoriety during the 2008 election for contributing to John Edwards’ campaign to help him support Rielle Hunter and her baby fathered by Edwards. Her 37 page will and 9 codicils comprising another 40 pages were recently admitted to probate in Virginia. The will addressed a multitude of personal items, created life interests in various real properties for different individuals, gave $20 million to her 75 year old son, and made many charitable bequests.

Several points:

1. An estate of this magnitude is generally suited for the privacy offered by a funded trust. This is doubly so when the individual does not like publicity.

2. An estate of this magnitude can also be well served by having the entire estate pass through the probate process so any potential will contest must be brought quickly (within 4 months of probate starting in Ohio) and creditors’ claims filed against the estate (six months from the date of death in Ohio).

3. She was smart to change her will as circumstances changed for her, including the death of her daughter and the conviction of her initial co-executor for operating a Ponzi scheme.

4. Unsurprisingly, she did not leave any funds to John Edwards for haircuts, child support, or otherwise.

DIY Wills – Pay Me Now or Pay Me Later

Wednesday, 23 April 2014 20:43

A Florida woman saved money on will preparation by using a DIY service titled E-Z Legal Form. Her will left all of her listed property to her brother. The will did not have a residuary clause which states who receives all non-listed assets. Inevitably, she later opened a new account that was not addressed by the will. She left a handwritten note in which she tried to to bequeath the account and all of her “worldly possessions” to her brother except for several accounts she wanted to leave to his daughter. The note was only witnessed by her brother’s daughter. Other nieces claimed that they were entitled to a share of the unlisted account because it was not addressed in the will. The Florida Supreme Court ruled that they were entitled to a share of the unaddressed account under Florida intestacy laws.

Several points:

1. All wills need a residuary clause to provide who inherits assets not specifically listed. In fact, in every will I draft the residuary clause is the most important section.

2. The decedent would have been better served simply by skipping the listing of specific assets and merely having a residuary clause leaving all of her assets to her brother.

3. A handwritten note with only one witness who is also a potential beneficiary is invalid on its face and is a worse idea than using a poorly drafted form found on the Internet or purchased at Staples.

4. As the weary mechanic in the Fram oil filter commercials said after performing an expensive engine repair instead of simply replacing an oil filter, “Pay me now or pay me later.” This decedent would have been better served spending some money on an attorney ($600 is my standard will and power of attorney fee) instead of trying to save a few dollars while incurring thousands of dollars in legal fees in a futile attempt to have her wishes followed. Plus, I am much more fun to work with than following, perhaps incorrectly, a few prompts in a software program.

The Morning Line Again

Friday, 18 April 2014 09:43

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

Even Rappers’ Estates Need to Pay Their Debts

Monday, 14 April 2014 20:44

I have previously blogged about rapper Nate Dogg and the financial issues surrounding his estate. He died in 2011 without a will but with 6 children of unascertainable ages and different mothers and unpaid child support and medical bills of $290K. His primary asset was a house with $200K of equity. The administrator of his estate has a contract to sell the house for $340,000 but his children are opposing the sale because it will not leave them enough money.

Several points:

1. A decedent’s debts must be paid before estate beneficiaries receive any proceeds of the estate. It is unfortunate for his children that there will likely be no assets left for them after the payment of debts, but an administrator cannot magically make a house worth more than the market is willing to pay nor make the debts less.

2. If Mr. Dogg had wanted to provide for his children and not worry about his debts, he could have purchased a life insurance policy to benefit them.

3. His house was worth $340K? I doubt it was featured on MTV’s “Cribs.”

Nate Dogg

Last Will and Embezzlement

Thursday, 10 April 2014 07:34

Diminutive actor Mickey Rooney died this week at age 93. In recent years, he was in the news for his allegations of elder abuse against his step-son and step-daughter-in-law and for his Congressional testimony about the abuse. Last Fall, he symbolically settled the case against his step-son and his step-daughter-in-law for a $2.8 million judgment that will not be paid by them. He re-wrote his will last month to exclude his wife of 35 years, from whom he had separated a year ago after allegations of physical abuse, and his 11 natural children. He left his entire $18,000 estate to his other step-son who has been his care giver for the past 3 years.

Several points:

1. Elder abuse is more common than realized. Although it is rare when a spouse of 36 years is somewhat complicit in the abuse, mothers will go to great lengths to “protect” and enable their children’s bad habits.

2. Under Ohio law, his estranged wife would receive the entire $18,000 despite what the will states because a spouse is entitled to at least the first $20,000 of assets.

3. Eight wives? Someone should have told him he did not need to marry every woman he dated.

Shooting an Airball

Sunday, 06 April 2014 15:33

Lorenzen Wright played in the NBA for 13 years and earned $55 million. Shortly after his retirement, he was the victim of an unsolved murder in a suspected drug deal. He was survived by his ex-wife, Sherra Wright, and their 6 children. After his death, his ex-wife received $1 million in insurance proceeds in trust for the children. Within 10 months of receiving the proceeds, she was accused of having spent nearly all of them on housing, furniture, cars, and travel. She is now subject to probate court action to remove her as trustee.

Several points:

1. It is never a good idea to have a former spouse serve as trustee for the children. A financially savvy third party is a much better choice. Newly divorced individuals should quickly revise their wills and trusts to remove the former spouse and to keep him/her away from assets for the children.

2. In some defense of Sherra Wright, purchasing real estate with trust assets is not spending them, it is re-allocating the type of investment.

3. I suspect that Mr. Wright is not the only former NBA player to have significant career earnings and to die with less than 2% of them remaining. Annual child support and alimony payments of $330,000 tend to rapidly diminish one’s net worth.

Fast, Furious, and Guardianship Settlement

Wednesday, 02 April 2014 20:40

As mentioned previously, Paul Walker designated his mother as the guardian of his minor daughter, Meadow Rain, even though Rebecca Soteros, Meadow’s mother, was still alive. His mother filed probate documents asking to be named guardian. According to Bela Lugosi Jr, attorney for Mrs. Walker, the parties recently agreed to allow Meadow to live with Soteros once Soteros completes a stint in alcohol rehab.

Several points:

1. This would have been a difficult fight for Mrs. Walker to win because the birth parent is presumed to get sole custody of a child regardless of provisions in the deceased’s will.

2. Mrs. Walker probably leveraged the will provision to ensure that Soteros sought treatment before gaining sole custody of Meadow, although she might have been tempted to fight for custody by the trust funds available to her.

3. Who knew that Bela Lugosi (Jr.) was practicing law? I thought Bauhaus said “Bela Lugosi’s Dead.”

As Tears Go By

Thursday, 27 March 2014 22:33

L’Wren Scott was the fashion designer girlfriend of Mick Jagger. When she committed suicide 10 days ago, rumors swirled that she was in financial trouble. After her will leaving her entire estate to Mick was filed in NY Surrogate’s Court this week, media outlets are reporting that she was not financially stressed because the probate documents listed her as the owner of an $8 million condo and $ 1 million of personal belongings.

Several points:

1. The media outlets are incorrect and Ms. Scott could have been financially strapped. NY (and Ohio) requires initial probate documents to reflect gross value of assets. Debts and liabilities are not required to be listed so it is doubtful that she had a condo with $8 million equity.

2. Leaving money to Mick Jagger? No matter how much she wanted to show love for him, L’Wren might have been better off selecting a charity important to her and Mick, assuming she had assets to leave. Mick does not need a nickel from her which will only be taxed at his death (although he and Keith Richards might have a deal with the devil to live forever).

3. As I have mentioned before, I remain available for media consultation on will and probate interpretation matters. Someone has to assist in getting these stories reported correctly.

Love or Exploitation?

Saturday, 22 March 2014 13:52

A couple, who resided together for 4 years, met with a lawyer to discuss executing wills. The lawyer allegedly advised them it would be cheaper if they simply married. Seven months later, after the woman had suffered her second stroke and had been declared incompetent by her physician, the man removed her from the nursing home and married her in a civil service. When the woman died intestate 3 months after the wedding, her sister and step-children from her first marriage contested the validity of the marriage due to her alleged lack of capacity. If the marriage were invalid, the sister would inherit the $450,000 estate. If the marriage were valid, the husband would inherit. The step-children were listed as the beneficiaries of an unsigned 1999 will. After the Wisconsin Supreme Court held that the marriage could be challenged on the grounds of legal incapacity, the husband and relatives agreed to split the estate.

Several points:

1. There are many “will substitutes” which include trusts, beneficiary designations, and jointly owned assets. Marriage is not one of them. In 27 years of practice, I have never advised a couple to get married instead of executing wills.

2. Carpe Diem! If you pay for a will in 1999, sign it and let your family know where the original is. If you want to prepare a will in 2008, follow through. If you want to get married instead, get married then not seven months and two strokes later.

3. The Wisconsin marriage statute does not address the ability to void a marriage after someone has died. However, in an era where courts interpret statutes to permit same sex marriage it was easy for the Wisconsin court to create its own rule on voiding a marriage.

A Bitter Apple

Sunday, 09 March 2014 20:59

A British woman died and left her iPad to her children. She used it for e-mail and games after being diagnosed with a terminal illness. Her children have been unable to access all of the content on it because they do not have her Apple ID and password. Apple has requested a court order proving that she was the owner of the iPad and the account. The legal fees for obtaining the court order would exceed the value of the iPad.

Several points:

1. I advise all of my clients to write down their on-line passwords and store them safely so that heirs can access their digital assets if necessary.

2. When one is terminally ill, tasks such as making a will, discussing funeral arrangements, sharing passwords, etc., that can be done today should be done today. There is no reason to delay because there might not be a tomorrow.

3. The iPad will work without the Apple ID so what is likely happening is that the family does not know the iPad’s 4 digit lock code. With 10,000 combinations and a five minute lock after 3 incorrect guesses, the family should be able to crack the code in 11.5 days with methodical guessing. Their time might be better spent working to buy a new iPad and forgo listening to mom’s music and playing her Angry Birds.

Greed Will Not Brake for Tragedy

Sunday, 02 March 2014 15:38

A Milwaukee attorney and another law firm represented the family of a couple innocently killed in a horrific DUI accident. After reaching a settlement with one insurance company for $250,000, the attorney committed suicide. The executor of his estate found the $250,000 check payable to the attorney and the other firm and sent it to other firm for safekeeping. The other firm cashed the check but then refused to give the deceased attorney’s share of the attorney fees to his estate alleging he breached the fee sharing agreement by committing suicide.

Several points:

1. Checks payable to someone who subsequently dies are part of the probate estate.

2. I am not sure how the law firm was able to cash a check payable to two parties.

3. The legal fee in this matter was clearly earned when the settlement was received so the law firm’s theory for non-payment has no grounds.

4. With business partners like the law firm, I can see why the attorney thought the world was bleak.

Cincinnati Pride

Sunday, 23 February 2014 17:27

No celebrity wills and probate today, instead a bit of love for Cincinnati. National Geographic Traveler noticed all of the energy and happenings in town from 21 C Hotel to OTR and from Rhinegeist Brewery to the American Sign Museum. A former NYC resident now living in town said, “Cincinnati has gone from musty to must see.” So true. Walk taller and with your chest out, Cincinnati.

Philip Seymour Hoffman Will

Wednesday, 19 February 2014 20:27

The will of Philip Seymour Hoffman was admitted to probate this week. Despite sloppy media reporting about a trust for his son (I am looking at you Reuters and New York Daily News), the will left all of his $35 million estimated estate to his girlfriend, and mother of his 3 children, Mimi O’Donnell. The will also had an unusual request that his son be raised in NYC, San Francisco, or Chicago. The will was signed before the birth of his 2 daughters.

Several points:

1. Wills should be reviewed after the birth of a child to ensure that the new baby is included and to ensure that the proposed guardian can adequately care for the additional child.

2. Hoffman’s estate will owe approximately $12 million in federal estate taxes on the 9 month anniversary of his death. The tax could have been delayed until the death of Mimi O’Donnell due to the use of the marital deduction if they had been married.

3. If the mainstream media will not employ fact checkers, I am available for $300 per hour to review and advise them on wills of famous people.

4. The 55 unused bags of heroin in his apartment were not addressed by the will.

5. NYC, Chicago, and San Francisco? Apparently diversity is good, but does not include being exposed to Republicans.

Fast, Furious, and Thriller

Saturday, 15 February 2014 17:36

As noted earlier, when Paul Walker’s executor filed his will with the probate court, he estimated his future income at $8 million and this total estate at $25 million. Also, as noted last Fall, the Executors of Michael Jackson’s estate are battling the IRS over the value of his estate, which they declared to be only $7 million but the IRS contends is worth more than $1 billion. The discrepancy stems largely over the value of MJ’s likeness for commercial purposes (t shirts, merchandise) and the value of his musical catalog which also includes Beatles songs. His estate valued them at $2,100 and $0 respectively. The IRS valued them at a combined $900 million.

Several points:

1. If Paul Walker will earn $8 million post-mortem, a $7 million valuation for Jackson’s estate is ludicrous.

2. The King of Pop grossed $160 million in 2013, more than any other celebrity belying the low valuation of his music if not his likeness.

3. I doubt that the image of a deceased entertainer with MJ’s murky past is worth $450 million, but it is worth more than $2,100.

4. It might seem like the IRS “won’t stop ’til it gets enough” and the issues are “black or white,” but the estate’s stated values are “bad” if not “dangerous” and could make his family “scream” if they do not “beat it.”

Fast, Furious, and Admitted to Probate

Tuesday, 11 February 2014 21:24

The will of “Fast and Furious” star, Paul Walker, was admitted to probate last week. The 2001 document has garnered some media attention because it appoints his father as executor of his $25 million estate which he left to a trust and designates his mother as guardian of his daughter, Meadow Rain, even though her mother survived her. His estate consists of $10 million of investments, a house with $8.5 million equity, and projected $8 million residuals from his movies.

Several points:

1. In split household situations, the biological parent will almost always be the sole guardian of a minor child even if the will designates someone else.

2. In split household situations, I always designate a guardian for the minor children, although I condition it on the other parent being unable to provide a stable home environment.

3. Mr. Walker could have avoided the probate process on his investments by adding a transfer on death (TOD) designation to his trust.

4. Meadow Rain? In the annals of names of celebrity children it is probably better than Apple Martin and Blue Ivy Carter, and definitely better than Peaches Honeyblossom Geldof, Fifi Trixibelle Geldof, Moon Unit Zappa, and Diva Muffin Zappa but falls short of Tallulah Willis and Scout Willis.

Rock and Roll Lawsuits Never Die

Tuesday, 04 February 2014 21:05

Bill Graham was a famous concert promoter who died in a helicopter crash in 1991. His estate sold his company, Bill Graham Enterprises, in 1997. Prior to selling the company, the estate transferred his copyrights and trademarks, including the rights to famous concert posters, to the company. His sons, who each inherited $10 million, sued the executor in Federal Court in 2010 for not disclosing the sale to them. The sons allegedly discovered the sale while rummaging through their father’s business records in ’09. The suit was initially dismissed because the 4 year statute of limitations had long expired, but the 9th Circuit said that the case may proceed to trial.

Several points:

1. Probate is a state court matter. I do not know why this is in federal court unless the attorneys were counting on the 9th Circuit to make an out of left field ruling in their favor.

2. Of course a business transaction that looks good in 1997 might be viewed as less savvy in 2010.

3. I suspect that the sons had depleted most of their inheritance and were actually rummaging for dollars when they “discovered” the sale of the property.

On the Back of the Working Class. Kind Of. (Huguette Clark Part 4)

Sunday, 26 January 2014 16:40

I have previously blogged about the estate of Huguette Clark and the resulting litigation. Her heirs, will beneficiaries, day nurse, attorney, and accountant reached a settlement last September in which the nurse forsook a $30 million bequest and agreed to return $6.7 million of the $31 million she had previously received, the accountant and attorney agreed to waive their rights to the $1 million they were to receive, and the heirs agreed to share $38 million after being left out of the will. Now, the night nurse, who made $131K annually and received gifts of $1 million and was not a party to the settlement is suing the estate for being left out of the will after she was allegedly promised money by Ms. Clark. The estate is suing her to return some of the gifts.

Several points:

1. On its face, it does seem unfair that the day nurse received gifts of $30 million while the night nurse received $1 million while both worked 12 hour days, but then the night nurse only had limited hours to discuss gifts with Ms. Clark due to Ms. Clark’s sleep needs.

2. Ms. Clark had no obligation to leave her nurse anything in her will. Cases trying to enforce promises to leave a bequest are extremely difficult to win.

3. Even without receiving anything in the will, the nurse made out fine with her six figure salary and seven figure gift for sitting next to a sleeping woman for 20 years.

4. In what looks like the 1% exploiting the 99%, the nurses either received nothing under the will and had to return prior gifts while the attorneys shared fees of $24 million. In actuality, it was the rich exploiting the less rich because her night nurse’s income and assets placed her in the top 4% in the U.S. Sympathies are hard to place in this story.

Back In The Office

Sunday, 26 January 2014 16:09

Time away from the office is chewing up blogging time. My son and I were skiing together last weekend in Colorado. Picture below. New post to follow.

You Are Only As Good As Your Surrogate

Sunday, 12 January 2014 21:20

I am sure you have seen this, but it is still worth commenting on. A 13 year old California girl suffered tragic complications after undergoing sleep apnea surgery and was declared brain dead by the physicians at the hospital where the surgery was performed. Her family has contested the “brain death” declaration and has had her transferred to an disclosed facility with beliefs similar to theirs.

Two major points (no snark with these horrible circumstances):

1. Adults can avoid the ramifications of a similar situation by executing a living will about their intentions if declared brain dead and by designating a health care surrogate to act in their stead via a health care power of attorney.

2. The declaration of intent and designation of a surrogate are only as good as the person tasked with carrying out one’s wishes. Be sure that the surrogate shares one’s intellect and values, and respects one’s wishes.

BlogRead the Latest News

Semper Fi

Halitosis, Ponzi Schemers, and Politicians.

DIY Wills – Pay Me Now or Pay Me Later

The Morning Line Again

Even Rappers’ Estates Need to Pay Their Debts

Last Will and Embezzlement

Shooting an Airball

Fast, Furious, and Guardianship Settlement

As Tears Go By

Love or Exploitation?

A Bitter Apple

Greed Will Not Brake for Tragedy

Cincinnati Pride

Philip Seymour Hoffman Will

Fast, Furious, and Thriller

Fast, Furious, and Admitted to Probate

Rock and Roll Lawsuits Never Die

On the Back of the Working Class. Kind Of. (Huguette Clark Part 4)

Back In The Office

You Are Only As Good As Your Surrogate

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