Wills, Trusts & Estates Prof Blog

Jackson's Alleged Love Child Seeks Paternity Determination

The birth certificate of Prince Michael Malachi Jet Jackson, who is now 24 years old, reportedly states that his father is Michael Jackson.  It is reported that after having been denied a share of Jackson's estate by the estate executors, Prince Michael Malachi Jet Jackson has requested a paternity determination from the the L.A. Superior Court.

See TMZ, Alleged MJ Love Child Won't Accept Rejection, Dec. 1, 2009.

Potentially Problematic Trust Funding the Milton Hershey School

Milton Hershey used his chocolate fortune to found a trust to benefit children. Robert Sitkoff (professor of law, Harvard) recently commented on this potentially problematic trust in a Wall Street Journal article:

• The trust funds the Milton Hershey School, which serves 1,700 underprivileged children.
• The school's endowment is worth $6.2 billion.
• Nearly half of the trust's assets are invested in the Hershey Company and lacking diversification.
• Hershey is expected to bid over $16 million to purchase Cadbury, a possibly dangerous move for the undiversified trust.
• The trust attempted to diversify in 2002, but efforts were prevented by Pennsylvania Legislature.

The article concludes as follows:

There are only a handful of universities with bigger endowments than the Hershey Trust, yet the Hershey School has something like 2,000 children. Why aren’t there more Hershey Schools? Why aren’t they helping more children? Instead of a larger, more secure corpus, the Trust has a smaller, undiversified portfolio – and this has been required of it by Pennsylvania lawmakers.

 Michael Corkery, Cadbury-Hershey: Too Much Risk for the Kid's?, WSJ, Nov. 24, 2009.

Casket Falls and Cracks Open During Burial

In May 2008, the burial of Robert Gowdy, Sr., allegedly when horribly wrong. The family is suing the the City of Mesa, Arizona, cemetery workers, a funeral home, and a casket company after Gowdy's casket allegedly dropped and cracked open while being lowered into his grave.  It is alleged that cemetery workers ran from the scene of the accident.

See AP, Family jumped into grave after casket crumbled, suit says, Boston Herald, Nov. 28, 2009.

Tips for Avoiding Estate Litigation

US News reports that poor economic conditions have led to more estate litigation. While wealth transfers have increased over the past 20 years, currently reduced asset values make for a smaller pie and returns that are smaller than excepted.  Longevity and increased family complexity (2nd and 3rd marriages, for example) only add to disputes. 

US News suggests the following key tips for avoiding estate litigation.

1. Select a good, solid attorney who hasn't done any work for any of your beneficiaries.
2. Select an executor who can get along with your family, perhaps even a professional fiduciary if no one else could successfully fill this role.
3. Discuss your intentions with family before the will is drafted, taking away the surprise after death and making loved ones aware of personal wishes and desires.
4. Take state law into account, creating trusts to bypass probate if probate is especially burdensome under applicable state law.
5. Update the will or trust often so that challenges become more difficult.
6. Title assets appropriately so that the assets pass through or outside probate as intended.
7. Consider a no-contest clause coupled with testamentary gifts adequate to discourage disputes.  
8. Allow the estate some leeway with distribution of assets so that beneficiaries can agree to a distribution that suits them best.  

See Phillip Moeller, 8 Tips to Avoid Nasty Estate Surprises, U.S. News, Nov. 27, 2009. 

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

Searching for a Missing Will

The following "article" recently appeared in the Law Society Gazette and is actually a classified ad in search of a missing will:

Calling all probate solicitors. Do you recall acting for a ‘somewhat eccentric and secretive’ millionairess called Judy Maude Keele, some time in the past century? To refresh your memory, she owned a flat in Mayfair, drove a classic sports car, and reputedly built up a large collection of fine art and jewellery. She married a prominent Chicago lawyer, but on getting divorced returned to London in 1958. Keele died in New York in 1998, and while she is understood to have made a will in the UK, her solicitor is unknown and the document cannot be found. Lichfield lawyers Keelys are now on the case, and have even called in famous art detective Charles Hill, who apparently took part in an undercover operation to recover Edvard Munch’s famous picture The Scream – a portrait of a solicitor looking at his professional indemnity bill this October – when it was stolen from the Norwegian National Gallery in 2004. Anyone with knowledge of Keele’s will or possessions is asked to contact Keelys litigation partner Michael Phillips at mphillips@keelys.co.uk.

Heir Hunting, Law Society Gazette, Nov. 26, 2009.

Special thanks to David S. Luber (Attorney at law, Florida Probate Attorney Wills and Estates Law Firm) for bringing this article to my attention.

First Time Litigating in Probate Court?

Judge Gladys B. Burwell (Probate Court, Galveston County, Texas) has published her article entitled Suggestions for the First Time Litigator in Probate Court, The Advocate, Fall 2009, at 94. 

The following is an excerpt from the article:

The attorney coming to the probate court for the first time just needs to remember that the Rules of Civil Procedure apply to all cases and then they need to become familiar with the additional requirements of the Probate Code, and most particularly, in what court their case will be tried. 

Creditor Claims Process in Texas Probate Courts

Gus Tamborello (attorney, Houston) has published his article entitled Creditor Claims in Independent and Dependent Administrations in Texas-Beware of the Trap Doors!, The Advocate, Fall 2009, at 49.

 The following is the introduction to the article:

Handling creditor claims in Texas probate court is a bit like creeping through a haunted house-- confusing and downright scary.  The Texas Probate Court sections pertaining to creditor claims are often the most misapplied and misunderstood statutes in the probate process. At first blush, there appears to be no rational organization or specific applicability to an independent or dependent administration.  Hence, a clear understanding of the creditor claims process is imperative if we are to guide our clients who are personal representatives, creditors, and beneficiaries through this frightening maze unscathed.

Estate of Just For Feet CEO in Accounting Dispute

The probate court of Alabama is currently hearing an accounting dispute over the Estate of Harold Ruttenberg, former CEO of Just for Feet.  The personal representatives of the estate seek approval of their actions and over $15 million dollars in their petition for final settlement.  Two Ruttenberg estate beneficiaries contest the claimed expenses, asserting that money was misappropriated in violation of Alabama Code and that a conflict of interest among lawyers essentially caused the estate to overpay on a $15 million settlement agreement.

In re Estate of Harold Ruttenberg, Probate Court of Jefferson Country, Alabama.

How to Deal With a Rogue Executor

Edward J. Patterson (partner, Fullbright & Jaworski L.L.P.)  & Wesley L. Bowers (associate, Fullbright & Jaworski) have published their article Dealing With the Rogue Executor: A Page From the Fiduciary Litigation Playbook, The Advocate, Fall 2009, at 44. 

The introduction to the article is below:

For most folks, the death of a family member is one of the most difficult situations they encounter.  This difficult situation is made all the more painful when they are faced with an unfamiliar and seemingly daunting estate administration.  Unfortunately, there are instances when this painful situation is exacerbated by the introduction of a recalcitrant and uncooperative executor who restricts the flow of information and controls the resources of the estate.  This bad actor is often referred to as the "rogue executor."  While the executor has been left with the proverbial keys to the kingdom, he or she does not always look out for the best interests of all beneficiaries of the estate.  As most estates in Texas proceed under an independent administration, the rogue executor is allowed to operate with minimal supervision from the courts and from the beneficiaries.  This article explores some of the methods and resources that are available to beneficiaries to deal with a rogue executor under Texas law. 

Houston Oilman's Wishes to be Honored, Others Not So Lucky

Last week, a jury in Houston needed less than an hour to decide that the last will of Alfred Glassell, Jr., was valid.  Glassell's daughter had challenged the will on the ground that attorneys exerted undue influence upon her father when he changed the primary beneficiary of his estate to the Museum of Fine Arts in Houston. 

Lou Ann Anderson, in an article entitled Jury rules to honor Houston oilman's estate wishes, Bell County Legal News Examiner, Nov. 17, 2009, uses Glassell's estate as an example of Involuntary Redistribution of Assets: 

Estates have become a tool for Involuntary Redistribution of Assets (IRA) acts in which probate venues and/or probate instruments such as wills, trusts, guardianships and powers of attorneys are used to loot assets of the dead, disabled or incapacitated.

For more information, see the article, which contains a discussion of IRA acts and solutions, numerous links, and examples of prominent estates involving IRA actions like reconfiguring the estate through estate administration and contesting a probate document in hopes of getting a lucrative settlement.

Special thanks to Jerry Cooper (TrustAdvisorBlog) for brining this to my attention.

Sarkozy Proposes Moving Remains of Writer Albert Camus

French President Nicolas Sarkozy would the remains of French writer Albert Camus to be moved to the Paris Pantheon, a monument to great men and women of France and one of the most hallowed burial grounds in the country.  Camus's son, however, is opposed to the move, and some are accusing Sarkozy of trying to raise approval ratings with the move.

Camus received the Nobel Prize for literature in 1957.  If moved, Camus's remains would be among the remains of Valtaire, Louis Pasteur, Victor Hugo, Alexandre Dumas, and Murie Curie. 

See David Jolly, Son Objects to Moving Camus's Remains, NY Times, Nov. 22, 2009.

Special thanks to Alfred Brophy (professor of law, University of North Carolina) for bringing this article to my attention.

Winnie-the-Pooh Goes to Court

The estate of Stephen Slesinger is suing Disney, claiming that the company owes the estate hundreds of millions of dollars in concealed Winnie-the-Pooh royalties.  Slesinger obtained the licensing rights to Winnie-the-Pooh in 1930, and the estate has unsuccessfully sued Disney twice before.  

See Rachel Lee Harris, Winnie-the-Pooh Returns to Court, NY Times, Nov. 15, 2009. 

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

Right to a Jury Trial In Texas Probate Courts?

Tammy C. Manning (attorney, Houston) & Jason Cox (attorney, Houston) have published their article entitled Jury Trials in Probate Court: A Brief Overview, The Advocate, Fall 2009, at 24. 

The following is an excerpt from the article:

The Texas Constitution states that "In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury; but no jury shall be empanelled in a civil case unless demanded by a party to the case, and a jury fee be paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature."  Although this language seems expansive and comprehensive, in a probate context it is unclear whether a party has an automatic right to a jury.

The Top Earning Dead Celebrities of the Decade

You may be wondering, "who are the top earning dead celebrities of the decade?"  The linked chart, which is provided by termlifeinsurance.org and is adapted from information provided by Forbes, provides the names of the fifteen top earning dead celebrities and some creative illustrations.  

Michael Jackson's third-place rank may be surprising for some considering that he has been dead for only a fraction of a decade.  Also surprising may be number ten, Bob Marley, given my recent report that unlicensed sales using Marley's name and image are estimated to be $600 million annually, while licensed sales are only a small fraction of this amount.

Real Property Foreclosures During Probate

Joshua J. White has published his article entitled The Foreclosure Process in the Probate Context, The Advocate, Fall 2009, at 99. 

The following is the introduction to the article:

This article is intended to provide an overview of the real property foreclosure process in the probate context.  The substance of the article assumes basic familiarity with the foreclosure process under the Texas Property Code and basic familiarity with the estate administration processes under the Texas Probate Code. 

Update on Estate of Former Fiat Chairman

I previously reported the legal battles surrounding the estate of Gianni Agnelli, former chairman of Fiat.  Agnelli's daughter, a primary beneficiary of Agnelli's estate, claims that the estate contains undeclared assets held in Swiss accounts, worth as much as $1 billion.  Agnelli's daughter sued three advisors for an estate accounting. 

Lawyers presented closing arguments in court last week and a final decision is not expected until next year.  While the trial has remained closed to the public, the proceedings have exposed the family to unprecedented levels of publicity, what some call a demonstration that the dynasty that was once the "very definition of elegance and style" is finished.  Stacy Meichtry, Lawsuit Draws Rift Among Agnellis, Nov. 19, 2009. 

Special thanks to Patrick S. Sylvester (Attorney & Counselor at Law, Sylvester Law Firm, PC) for bringing this article to my attention.

Prosecuting and Defending When A Decedent or Ward is a Party

Rudolph M. Culp (associate, Horrigan & Goehrs, L.L.P.) & Joseph S. Horrigan (partner, Horrigan & Goehrs, L.L.P.) have published their article entitled Decedents or Wards as Parties, The Advocate, Fall 2009, at 68.

An excerpt from the introduction of the article is below:

Identification of the proper parties to litigation involving decedents or wards is essential to personal jurisdiction.  Woe to plaintiff's counsel who first learns on appeal that the proper defendant was not a party to the judgment.

This paper surveys the Rules of Procedure, the Probate Code, and the Trust Code concerning the effect on pending litigation of death or disability, as well as the requirements for prosecuting or defending suits initiated after death or disability.  

Texas Wills & Trusts Case Law Survey

Gerry W. Beyer (Governor Preston E. Smith Regents Professor of Law, Texas Tech University School of Law) has recently posted on SSRN his article entitled Wills & Trusts, 62 SMU L. Rev. 1499 (2009).  Here is the abstract of his article:

This article discusses judicial developments relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters during the Survey period of November 1, 2007, through October 31, 2008. The discussion of most cases includes a moral that is the important lesson to be learned from the case. By recognizing situations that have resulted in time consuming and costly litigation in the past, the reader may be able to reduce the likelihood of the same situations arising with his or her clients.

Fawcett's Will Available Online

A copy of Farah Fawcett's will is supposedly available online.  The will leaves $4.5 million to Fawcett's son and nothing to Ryan O'Neal, her boyfriend of nearly 30 years. Fawcett died of cancer this past June.    

See Fawcett left Ryan O'Neal zilch in will, New York Post, Nov. 16, 2009.

Tips and Lessons Learned From Mediating Estate Disputes

Jay Folberg (Professor Emeritus, University of San Francisco) has published his article entitled Mediating Family Property and Estate Conflicts: Keeping the Peace and Preserving the Family Wealth, Prob. & Prop., Nov./Dec. 2009, at 9.  

An excerpt from the introduction of the article is below:

Litigation's tremendous financial cost is only one downside of an intra-family lawsuit.  Court pleadings and proceedings are public.  One principal advantage of private mediation over litigation of sibling and intergenerational family disputes is the confidentiality provided in keeping family fights from the public eye.  The light of publicity often cements positions and makes compromise more difficult.  There are, of course, other advantages to working out a settlement amount warring family factions, including reconciling differences. healing, and potential tax savings.  Courts are limited in the remedies they can impose, and framing family disputes in legal terms inhibits the parties' ability to invent or accept creative solutions.  Litigation rarely heals differences or promotes understanding.

I would like to share three case scenarios based on family conflicts that I have mediated and what can be learned from them, along with some tips for lawyers.  Although names and identifying characteristics are changed in the stories, the cases share something in common.  Each involved high stakes for the participants and consequences that would have been irreparable if the dispute had not been resolved constructively.