wills | Jay Brinker – Cincinnati Attorney

Clear and Present Estate Taxation

Wednesday, 26 August 2015 20:00

When Tom Clancy died two years ago, he distributed his real estate to his 2nd wife, then left the remainder of his $83 million estate in equal thirds as follows:

1. In trust for his wife,

2. In trust for his wife and adult children from his first marriage, and

3. In trust for his adult children from his first marriage.

The primary asset was his 12% interest in the Baltimore Orioles which was valued at $65 million. The last codicil signed by Clancy directed that his wife should receive her inheritance “estate tax free.” His wife and adult children then proceeded to fight over whether the trust for her and them (Trust No. 2) should pay any estate taxes. A Maryland court recently decided that the trust for the children (Trust No. 3) should pay the entire estate tax bill.

Several points:

1. Poor drafting leads to expensive disputes. I have never used the vague term “estate tax free” in any document I have drafted.

2. If a trust for a surviving spouse is carefully drafted, it can postpone the taxation of its assets until the death of the surviving spouse which is what seems to have occurred here at least with respect to the trust for the spouse only (Trust No. 1).

3. Shed no tears for anyone in this dispute. Clancy’s adult children will presumably also inherit the substantial assets his first wife received upon their divorce while his 2nd wife is reportedly an heiress to a Pepsi bottling fortune. Even the IRS receives nearly $12 million with significantly more millions coming when the 2nd wife dies.

4. The second wife aka Evil Step-Mom likely cannot die soon enough for his adult children.

(Thanks to Chip Workman for bringing this to my attention).

Procrastination Is Not Discrimination

Monday, 24 August 2015 21:42

An older woman adopted her younger girlfriend/partner in the 1970’s so the girlfriend could inherit the trust fund created by the older woman’s father. When the older woman died in 1997, the girlfriend inherited a substantial sum from the trust. The younger woman died in 2009 without a will. Her brother staked a claim to her $25 million estate as her closest living relative. However, NY law (and Ohio law) provides that once someone is adopted, they lose all relationships with their prior family, including the ability to inherit from them, and the ability to leave them assets without a will. The woman’s estate will escheat to the State of NY because she has no relatives.

Several points:

1. Lawyers in this case are arguing that the older woman adopted her girlfriend because same sex couples did not have the same rights as traditional couples in the 1970s. However, that argument is a red herring because the funds were in a trust which could only be left to a descendant which caused the woman to adopt her girlfriend. Funds not in trust could be left to anyone she pleased – girlfriend, charity, or relatives.

2. I draft trusts to prevent this type of adoption chicanery by including only children who were adopted prior to the age of 18.

3. In an era of Obergefell and Kaitlyn Jenner’s reality show, it is easy to create a legal smokescreen by arguing discrimination from 40 years ago, when the real culprit is simple neglect by a wealthy person to create a will.

Google and Death

Tuesday, 18 August 2015 20:04

Google recently updated its terms of service to make it easier for the relatives of a deceased owner of a Google account to deal with the account. By checking a box, an individual can request that Google close an account, notify Google that a user is deceased, request the payment of funds from a deceased user’s account, and obtain data from a deceased user’s account. The request page is here.

Three brief points:

1. This is a a rare example of Google acting uncharacteristically altruistic instead of operating solely in its own self interest.

2. The wills I draft always have provisions permitting an executor to access the digital accounts and digital assets of a deceased individual.

3. The request to obtain data from a deceased user’s account does not apply to the NSA – they already have it.

Love Thyself and Love Thy Shrink

Thursday, 13 August 2015 21:11

Amy Blumenthal moved to NYC and started seeing a psychiatrist, Dr. Susan Turner, to fulfill her prescriptions. Six months later Turner allegedly dropped Blumenthal as a patient, started dating her, and soon moved into her apartment. Blumenthal eventually re-wrote her will to leave her $7 million estate to Turner. Blumenthal died 3 1/2 years after starting the romantic relationship with Turner. Blumenthal’s brother, a hedge fund manager and owner of a swimwear line, is challenging the will on the grounds that Turner unduly influenced his sister in the preparation of her will.

Several quick points:

1. Although it is unethical for a psychiatrist to date a patient whom the psychiatrist is treating, it is not unethical for the psychiatrist to be named as a beneficiary of the patient’s will although an argument can be made that the psychiatrist unduly influenced the patient.

2. When a woman leaves her estate to her girlfriend of 3 1/2 years while ignoring her brother the hedge fund manager who is presumably well off, it is difficult to prove undue influence.

3. I thought that hedge fund managers only cared about billions, not single digit millions. I also did not think that they had sideline swimwear businesses.

Daddy Knows Best?

Wednesday, 29 July 2015 20:53

Maurice Laboz was a NYC real estate investor worth $37 million when he died earlier this year. He left $10 million in trust for each of his daughters and provided that they will receive their inheritance when they reach 35. However, they may receive funds earlier if they abide by his wishes of signing a pre-nuptial agreement prior to marriage ($500K) and graduating from an accredited college and describing the use of trust funds distributed early ($750K). They will also receive a distribution of 3x their annual salary each April 15 and distributions for staying at home with children born in wedlock (3% of the trust value annually). He also disinherited his wife whom he was in the process of divorcing.

Several quick points:

1. Funded trusts are a great vehicle for disinheriting a spouse in the midst of a divorce proceeding. Otherwise, the estranged spouse is entitled to a percentage of the estate at death (1/3 in Ohio).

2. Incentive trusts such as Mr. Laboz’s are good for imposing one’s wishes and values from the grave upon one’s descendants.

3. Personally, I favor a trust clause that distributes 10% of my children’s inheritance to charity for each tattoo that they have, visible or not.

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Clear and Present Estate Taxation

Procrastination Is Not Discrimination

Google and Death

Love Thyself and Love Thy Shrink

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