wills | Jay Brinker – Cincinnati Attorney

Someone Will Cry, Cry, Cry

Friday, 01 March 2013 13:32

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

Wednesday, 27 February 2013 14:35

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

Sunday, 24 February 2013 17:10

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.

Prepare a Will, Not a Letter

Monday, 18 February 2013 15:08

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.

Tuesday, 12 February 2013 14:51

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.

BlogRead the Latest News

Someone Will Cry, Cry, Cry

When Dad Is Accused of Murder

Mindy McCready’s Children

Prepare a Will, Not a Letter

Where Are They Now? Collecting an Inheritance.

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