Wills, Trusts & Estates Prof Blog

Preservation of Probate Records

The Florence County South Carolina Probate Court has recently received a grant to "preserve on microfilm more of its crucial, aging estate papers, some of which are more than a century old." 

See Charles Tomlinson, Grant to help probate court preserve estate papers, Morning News Online, April 30, 2008, which also explains:

The $849 grant is the first the court has received from the S.C. State Historical Records Advisory Board, Florence County Probate Judge Kenneth Eaton said.

It will be supplemented by $5,000 in the court budget for hiring someone to transfer the documents to microfilm, Eaton said.

The grant will be used to preserve papers from 1917 to 1959. Estate documents from the county’s 1888 formation through 1916 are already on microfilm, Eaton said.

“They get a lot of wear and tear because they’re public documents — people can come and open them up,” he said of the original paper files.

Microfilm, with a potential life of 500 years, makes estate papers and other fragile records easier to view and duplicate, according to the probate court.

Special thanks to Neil E. Hendershot of the Harrisburg, Pennsylvania law firm of Goldberg Katzman, P.C., who also authors the PA Elder, Estate & Fiduciary Law Blog, for bringing this article to my attention.

Is Steve Fossett's Estate Liable for Search Costs?

The governor of Nevada, Jim Gibbons, intends to ask Steve Fossett's widow to help Nevada pay the $687,000 is spent searching for her husband, although the search was unsuccessful.

According to AP, Nevada wants Fossett widow to pay search cost, MSNBC, May 2, 2008:

Ben Kieckhefer, press secretary for [the governor], said any assistance from the Fossett family would be voluntary.

"We are going to request that they help offset some of these expenses, considering the scope of the search, the overall cost as well as our ongoing budget difficulties," Kieckhefer told The Associated Press.

It is an interesting question whether Nevada could file a successful claim as a creditor of the estate.

The Probate Process -- Good or Bad?

Is probate an evil to be avoided at all costs, a quick and easy transfer mechanism with built-in protections, or something in-between?  The answer depends on a variety of factors, primarily the law of the state which will govern the estate.

For an interesting discussion, see Steven Seidenberg, Plotting Against Probate, ABA J., May 2008.  Here is an excerpt from this article:

More than ever before, clients want to do whatever they can to avoid the possibility that their estates will be probated, says Christopher Gagic, an estate planning attorney at Buckingham, Doolittle & Burroughs in Boca Raton, Fla. “I see clients insisting on a revocable living trust just because they want to avoid probate,” he says. “They all want to avoid probate, which seems to be a dirty word.”

Many state legislatures, too, seem to take a dim view of probate. They have enacted laws that authorize new techniques for avoiding probate, make more estates exempt from probate and streamline the probate process.

But the efforts of attorneys, clients and legislatures to limit probate may not always produce the desired results. The volume of trust and estate litigation is growing rapidly, with no end in sight. Moreover, avoiding probate means there is less outside supervision of asset transfers, making it easier for fraudulent schemes or family disputes to keep assets away from beneficiaries and creditors who are entitled to them.

“Avoiding probate is a legitimate goal, but people don’t know about the risks,” says Brian D. Bixby, who chairs the probate and trust litigation group at Burns & Levinson in Boston. “They don’t think [problems] can happen in their family, and they are often embarrassed when it happens to them.”

Removal of Executor & Return of Fees

In In re Estate of Miller, 243 S.W.3d 831 (Tex. App.—Dallas 2008, no pet. h.), attorney was named as the independent executor of his great-uncle’s will.

Before being appointed by the court, he entered into a fee agreement with Beneficiary that include provisions for Attorney to receive a contingency fee.

After being appointed, Attorney hired himself as the attorney for the estate.

Attorney was not a beneficiary of the will nor was he entitled to a fee under the terms of the will.

Attorney filed the inventory over one year late.

Later, he sold some of the estate property taking almost $100,000 in “compensation.”  (Note that experts testified that Attorney’s services were worth about $5,000).

Beneficiary filed an ancillary action to have Attorney removed as the executor alleging that Attorney grossly mismanaged the estate.  For example, Attorney lent estate money to one of his other clients and did not pay property taxes causing the property to be scheduled for foreclosure.

The trial court agreed, removed Attorney, and ordered him to reimburse the estate for the fees he received.

Attorney appealed and the appellate court affirmed.

The court reviewed Attorney’s actions and found that they amounted to gross mismanagement of the estate under Texas Probate Code § 149C.  For example, he unnecessarily delayed performing the administration of the estate, he improperly made excessive fee payments to himself, he lent estate property to a client without receiving a promissory note or collateral, and he did not make property tax payments.

Moral:  An attorney serving as a personal representative should not mismanage the estate.  The attorney should not charge excessive fees, make late filings, drag out the administration of the state, lend estate property to others, or otherwise breach fiduciary duties.

James Brown Update

Earlier on this blog, I discussed the ongoing dispute over James Brown's estate.

Here is some additional information from Lynnley Browning, Stewards of James Brown Estate Sue Morgan Stanley, NYTimes.com, April 24, 2008:

A dispute over the estate of the legendary soul singer James Brown has reached a bitter new pitch — on Wall Street.

The estate’s guardians are accusing Morgan Stanley, the investment bank, of failing to prevent the estate’s previous manager, David G. Cannon, from draining millions of dollars held for Mr. Brown at the bank.

The money, which was to be used to finance Mr. Brown’s lavish personal lifestyle, came from the 1999 sale of $26 million of “Pullman bonds” that were tied to Mr. Brown’s future royalty income.***

In a statement Wednesday, Morgan Stanley said that the newest lawsuit “is without merit and we will contest it vigorously.” The bank said it had documentation authorizing Mr. Cannon to manage the funds in question.***

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

Probate Litigation and Family Relations

Karen S. Gerstner, (Attorney at Law, Karen S. Gerstner & Associates, P.C.) has recently published her article entitled A Message to Clients . . . Avoiding Probate Court Litigation, Prob. & Prop., March/April 2008, at 56.

Here is an excerpt from her article:

When I was a young lawyer, I attended a meeting with several attorneys to discuss certain “contested matters” that had arisen after the death of a widower who died survived by four children. I was shocked to hear one of the seasoned attorneys say, “If all decedents had only one child, my workload would decrease to nothing.” Whether you go back to Cain and Abel, or only as far back as the Smothers Brothers (“Mom always liked you best”), sibling rivalry is the chief factor in many disputes arising after a parent dies. Many laypeople attribute all litigation to greed, but in the case of family situations, often much more is involved than simply greed. Sometimes children hold deep-seated resentments, which may be based on perceived unfair treatment by a parent or sibling, often going back many years. Sometimes the last living parent is the only “glue” holding the children in the family “together” (if they ever truly were, in fact, “together”). Sometimes parents have unrealistic expectations about family.

Ray Charles' Estate Disputed

According to Michael A. Hiltzik, Ray Charles' children battle over his legacy, LATimes.com, April 20, 2008:

Shortly before Christmas 2002, Ray Charles called a meeting of his 12 children at a hotel near Los Angeles International Airport. Ten of them, ranging in age from 16 to 50 -- with 10 mothers among them -- listened as their father told them he was mortally ill and outlined what they could expect from his fortune.

Most of Charles' assets would be left to his charitable foundation. But $500,000 had been placed in trusts for each of the children to be paid out over the next five years, according to people at the meeting and a trust document.

Yet Charles' description left so much to the imagination that some of the children came away with the impression that he meant to leave them $1 million each. Charles also hinted that there would be more for them "down the line," which some interpreted to mean they would inherit the right to license his name and likeness for profit.***

Charles exercised iron control over his music and recordings, but his legacy is in disarray, knotted up in legal disputes between the estate's management and his family members[.]

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

Removal of Executor; Creation of Trust; Trustee Acceptance

The following is a discussion of In re Estate of Kappus, 242 S.W.3d 182 (Tex. App.—Tyler 2007, pet. denied).

(1) Removal of Executor:  Beneficiaries’ Mother (the testator’s ex-wife) moved to have Independent Executor removed from office because he shared ownership of certain estate property with his deceased brother and allegedly had a conflict of interest with the beneficiaries.  Mother argued that he could not adequately represent the estate while seeking to retain his own share of the property.  The trial court denied the motion and the appellate court reversed.

The court begin its analysis by explaining that great deference is given to the testator’s choice of an independent executor.  However, the named executor may be removed for the reasons specified in Probate Code § 149C.  In this case, the estate and the executor are in conflict regarding a 4.86% interest in the property because both claim ownership to this property.  The court concluded that the existence of this conflict requires the trial court to remove the executor.

Moral:  Naming an executor who co-owns property with the testator is problematic should a dispute over the amount each actually owns arises after the testator’s death.

(2) Creation of Trust: The trial court held that a testamentary trust was not created because no steps had been taken to fund the trust.  The appellate court reversed.  The court explained that the will left the residue of Testator’s estate to a trust, the provisions of which were set forth in the will.  Under Probate Code § 37, title to property devised in a will vests immediately in the beneficiaries upon the testator’s death.  The will contained nothing which would delay this vesting.  Thus, the property vested immediately in the trustee.

Note:  The court went on to explain that although the trial court did not reach the issue of removing the trustee from office under Property Code § 113.082, since the trust was actually created, it was an abuse of discretion for the court not to remove the trustee from office for having a conflict of interest (the trustee was personally claiming ownership to a portion of the property claimed by the trust).

Moral:  Unless the will provides otherwise, a testamentary trust is created as of the date of the testator’s death.

(3) Trustee Acceptance:  The appellate court explained that “[w]hen the same person is named as independent executor and as trustee of a testamentary trust, acceptance of the position of trustee will be presumed from his or her having acted as executor.”  Kappus at 191.  It appears that the court is engrafting this as either an additional method of acceptance or as coming within the acceptance methods specified in Probate Code § 112.009.

Moral:  An executor who is also named as the trustee of a testamentary trust must take clear action to reject the trusteeship if the executor does not wish to serve in that capacity.

Tolkien Estate Files Suit to Recover Percentage of Lord of the Ring Film Revenues

The following is from Robert L. Moshman, Esq., The Lord of the Rings, published in the April 2008 issue of The Estate Analyst:

The Tolkien estate holds copyrights to the literary works of Tolkien, and several posthumous works have been published by Christopher Tolkien, who serves as literary executor of his father’s estate. Unfortunately, in 1969, Tolkien sold the film and merchandising rights to the books prior to his death to allow a cartoon movie to be made.***

To date, the estate has received none of the $6 billion generated by the recent Lord of the Ring films. In February, 2008, the estate filed a lawsuit against New Line Cinema claiming it is entitled to 7.5% of the revenues under the 1969 deal that Tolkien had made.

The Legacy of Elvis Presley

The following is from Robert L. Moshman, Esq., The King of Rock & Roll, published in the April 2008 issue of The Estate Analyst:

At the time of his death in 1977, Elvis Presley’s estate was worth $10 million, but without the benefit of sound estate planning, 73 percent of the estate went toward legal fees, estate administration costs, and estate taxes, leaving only $3 million to his daughter.

But the estate was more than liquid assets. Elvis Presley was a marketable commodity and with good management his estate grew to $250 million posthumously. Under the control of Priscilla Presley, Elvis Present Enterprises was created in 1980. By 2004 the company had revenues of $45 million annually and 100 licensees, 600,000 annual visitors to Graceland, and intellectual properties including music and film that had grown in value because the Elvis Presley “product” had been kept alive.***

The Gottlieb Real Estate Heritage

The following is from Andrew Rice, The Tightwad’s Legacy, NYTimes.com, April 6, 2008:

Bill Gottlieb died in 1999, but residents of Greenwich Village talk about him to this day, retelling tales that get more colorful with each passing year. A rumpled, elusive fellow who would walk the streets carrying shopping bags stuffed with cash and documents, Gottlieb spent decades quietly amassing an empire of run-down tenements, abandoned warehouses and weedy vacant lots. The properties cost Gottlieb little, but they could now be worth as much as a billion dollars altogether as the grimy neighborhoods where he shopped for bargains have long since given way to a landscape of luxury lofts and pet-grooming salons.***

Even after Gottlieb’s death, however, his heirs wouldn’t listen to offers.*** Historic preservationists have appreciated that intransigence; over the years, they came to see Bill Gottlieb as a sort of cheapskate savior, whose hands-off management style saved many buildings from insensitive renovations or outright demolition.***

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

Uncle says Heath Ledger may have more than one child

The following is from Even in Death, Rumors Plague Ledger, news.aol.com, March 31, 2008:

In the old days, the death of a celebrity meant the death of gossip-mongering around them. It was a level of respect afforded to the fallen star, their family and fans as a whole. But that was before Princess Diana, before the tabloid explosion and before the Internet.

Now, it appears, nobody -- dead or alive -- is too taboo for a headline, as Heath Ledger's uncle claims the actor may have fathered a child when he was 17.***

The "love child" report quotes Ledger's uncle, who claims that "there is a very real possibility that Heath" fathered a child when he was 17 and dating a 25 year old. The report contends that if it's proven to be Ledger's child, it could cause an estate battle for his ex-fiance Michelle Williams, with whom Ledger had their daughter Matilda.***

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

Representation in Estate and Trust Proceedings Analyzed

Martin D. Begleiter (Ellis and Nelle Levitt Distinguished Professor of Law, Drake University Law School) has recently posted on SSRN his article entitled Serve the Cheerleader - Serve the World: Representation in Estate and Trust Proceedings and under the Uniform Trust Code and other Modern Trust Codes. 

Here is an abstract of his article:

This article is an in-depth examination of representation in estate and trust proceedings of one person (or class of persons) by a person who is already a party to the action. A person who is represented by another party need not be made a party to the proceeding for the judgment to be binding on such person, thus enabling the action to proceed without minors, unborns and persons under disability. The doctrine arose in England and was used in the United States in the early 1800's in cases involving multiple parties. In estate and trust proceedings, a restricted form of the doctrine was recognized at common law and in the first Restatement of Property. The doctrine was greatly expanded by New York legislation enacted in 1967, the elements of which have been adopted by many other jurisdictions, either by statute or case law. The use of representation is desired by attorneys, since it avoids the expense of appointing a guardian ad litem for unborns, minors and persons under a disability. The Uniform Trust Code and other modern trust codes have greatly expanded the uses of representation, creating substantial risks that judgments will not be binding on parties alleged to be represented. This article explores those risks and suggests changes in the representation doctrine. This draft of the article has not yet been edited by the Real Property, Probate and Trust Journal.

Heath Ledger’s Uncles Say Deceased Actor’s Father is a Poor Manager of the Estate’s Assets

The following is from Ledger Family Feuding Over Heath's Estate, omg.yahoo.com, March 19, 2008:

Heath Ledger's family is embroiled in the midst of a battle for control of the late actor's estate.

The actor's uncles are speaking out against Heath's father, Kim Ledger's, management of Heath's assets, according to People.***

Heath's uncles claim Kim's past estate management has been less than stellar, telling the magazine Kim was removed as the executor of their grandfather's estate 15 years ago.***

Heath's will, which was drafted before he met Michelle Williams and the birth of his daughter, Matilda, left his belongings to his parents and siblings.***

"When you are talking about large sums of money like this, it should be an independent executor, but Kim hasn't chosen that way," Mike Ledger added.***

Special thanks to Eric Pace (J.D. Candidate, Texas Tech University School of Law) for bringing this article to my attention.

A Survey of Michigan Trusts and Estates Cases

Daniel W. Matthews (Associate Professor, Thomas M. Cooley Law School) and Karen L. Chadwick (Associate Professor, Thomas M. Cooley Law School) have recently published their article entitled Trusts and Estates, 53 Wayne L. Rev. 627 (2007).

Here is the introduction to their article:

Michigan appellate courts published decisions in six cases involving trusts and estates during the Survey period. The Michigan Supreme Court decided that a plaintiff may not introduce extrinsic evidence to establish that an attorney's failure to include a tax savings provision in a trust is malpractice. The Michigan Supreme Court also clarified when an agent acting under a durable power of attorney may self-deal in an incapacitated principal's property. The Michigan Court of Appeals decided three cases clarifying when a personal representative may file a timely complaint in a medical malpractice suit on behalf of a deceased person. The Michigan Court of Appeals also decided a case involving the scope and interpretation of an estate settlement agreement and the grounds for removing a personal representative.

Son struggles with a decision of honoring his father’s deathbed wish or destroying a masterpiece

The following is from David M. Smith, To burn or not to burn?, posted on the Toronto Estate Law Blog by Hull & Hull LLP on March 6, 2008:

Dmitri Nabokov, the 73 yr old sole surviving heir of Vladimir Nabokov, continues his 30-yr struggle with his father's deathbed request that his last unpublished work, The Original of Laura, be destroyed.  The stakes are high for Laura; at one point, Dmitri referred to it as "the most concentrated distillation of [my father's] creativity.***

The long twisted saga may find its fate as a cliffhanger of sorts.  In a dramatic verdict, Dmitri indicated late last month that he had indeed "decided to make a decision" about what to do, but that he would "neither disclose publicly either the decision or the deed."  Apparently (or should I say apparition-ly?), Dmitri reached his decision after an imagined ghostly conversation with his dead father.  Stay tuned for the future unveiling of either a box of Laura's ashes or what might be Nabokov's greatest literary work.

Special thanks to Bruce S. Johnson (Associate Dean for Information Services, Thomas J. and Mary E. Heck and Leo H. Faust Memorial Designated Professor of Law, Moritz College of Law, The Ohio State University) for bringing this blog posting to my attention.

Understanding the Interplay of Bankruptcy and Probate

David B. Young (Attorney at Law, McGinnis, Lochridge & Kilgore, L.L.P.) has recently published his article entitled The Intersection of Bankruptcy and Probate, 49 S. Tex. L. Rev. 351 (2007).

Here is the conclusion to his article:

This essay has only been able to touch a few of the high points of the interplay between probate and bankruptcy. The two specialized areas of practice, so similar in many respects, have much to learn from one another. The limits on the respective jurisdiction of probate and bankruptcy courts, what property each sort of court administers, when bankruptcy law depends upon and even incorporates state law and when it overrides state law, all afford opportunities for misunderstanding but also for cooperation. As with the state law insurance receivership systems, state law probate schemes may function in harmony with the federal bankruptcy system or they may clash with it. At least one key to ensuring that the former occurs more frequently than the latter is an effort by practitioners in each field to understand the other. One may hope that dialogue will increase.

Leona Helmsley Estate Update

Here are some recent developments on Leona Helmsley’s estate from Christina S.N. Lewis, 'Queen of Mean' Lair To List for $125 Million, online.wsj.com, Feb. 1, 2008:

Representatives of the estate of Leona Helmsley have decided to list her Greenwich, Conn., mansion for $125 million, people close to the negotiations said.***

Known as Dunnellen Hall, the estate of more than 40 acres was at the center of Mrs. Helmsley's 1989 federal tax-evasion trial, when she was accused of illegally billing her company for more than $3 million of property renovations. The former model, dubbed the "queen of mean," served 18 months in federal prison. She died in August at age 87.***

The estate must be sold, according to terms of Mrs. Helmsley's will, which left the bulk of her billionaire real-estate holdings and property to a trust, $12 million to her dog and comparatively little to her closest relatives. The real estate includes a majority interest in the Empire State Building.***

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

James Beasley’s Children Fight Over His $55 Million Estate

The following is from Shannon P. Duffy, Battle Erupts Over Handling of Trial Lawyer's $55 Million Estate, Law.com, Feb. 15, 2008:

An ugly dispute has erupted among the five children of the late, legendary trial attorney James E. Beasley Sr., pitting the two daughters from his first marriage against the son and two daughters from his second marriage in a battle over the handling of his $55 million estate.***

The petition seeks the removal of James Beasley Jr. and Pamela Beasley from their positions as co-executors alleging that they have "conspired" to reduce the value of their father's estate by transferring assets to their mother, Helen Beasley, "so that at the time of her death those assets will pass through her estate" and be divided only among her three children instead of giving a 20 percent share to all five children.

James Beasley Jr. said that there is no merit to any of his sisters' claims[.]***

Under the terms of his father's will, he said, the five children will receive their inheritances only after the death of his second wife, Helen Beasley. Until then, he said, most of the funds remain in trust to provide an income for her.***

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) and Paul L. Caron (Associate Dean of Faculty, Charles Hartsock Professor of Law, University of Cincinnati College of Law) for bringing this article to my attention.

James Brown Update

Earlier on this blog, I discussed the controversy surrounding James Brown’s estate. Here are more recent developments from Lynnley Browning, Suit Tangles Issue of James Brown’s Estate, NYTimes.com, Feb. 8, 2008:

Mr. Brown’s estate was already the subject of a raft of lawsuits and squabbling involving his children, grandchildren, children whose paternity has been asserted but not yet proved, three wives and a companion who says she was his fourth wife.

Now, a lawsuit filed Tuesday by two court-appointed trustees of his estate accuses his longtime business managers, including a retired judge, of stealing millions of dollars from Mr. Brown. The suit, filed in South Carolina state court, also accuses the law firm of Greenberg Traurig, one of its lawyers, and a South Carolina bank of breach of fiduciary duty, negligence and conspiracy to defraud the legendary soul singer. * * *

The lawsuit filed by the two trustees of Mr. Brown’s estate, Adele J. Pope and Robert L. Buchanan Jr., both lawyers, focuses on one of the three former managers, David G. Cannon, accusing him of siphoning at least $10 million since 1999.

The complaint also states that Mr. Cannon may have forged Mr. Brown’s signature to obtain a 40 percent interest in royalties from the James Brown dancing doll, an interest worth $95,000. * * *

Some of Mr. Brown’s heirs hope to turn his estate in Beech Island, S.C., into a lucrative Graceland-style tourist mecca. His songs also continue to produce royalties.

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

Sammy Davis Jr.’s widow says she was defrauded into signing away rights to her husband’s estate

The following is from AP, Sammy Davis Jr.'s widow sues ex-partners over singer's legacy and rights to his story, iht.com, Jan. 21, 2008:

The widow of Sammy Davis Jr. is suing two former business partners over the rights to the Rat Pack entertainer's life story and management of his legacy.

Altovise Davis says in a lawsuit filed in federal court that the two men exaggerated their show-business credentials and defrauded her into signing away some rights to her husband's estate.***

Things came to a head, according to the lawsuit, during negotiations with a studio that wanted to make a biopic about Davis.

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

Supreme Court Holds Trust Investment Advisory Fees Subject to the 2% Floor

In its January 16, 2008 decision Knight v. Commissioner, No. 06–1286 (U.S. Jan. 16, 2008), the United States Supreme Court sided with the IRS on the issue of deductibility of investment advice fees paid by a trust.

Normally investment advisory fees incurred by individuals are deductible only to the extent they exceed 2% of an individual's adjusted gross income. In this case, the Trust argued that it should be allowed to fully deduct such fees under 26 U.S.C. § 67(e)(1).

The Supreme Court rejected the Trust’s argument and held that investment advisory fees incurred by the Trust were subject to the 2% floor. In a footnote, the court noted that the analysis in this case was equally applicable to decedents' estates.

Special thanks to Neil E. Hendershot, Esq. (Attorney at law, Goldberg Katzman, P.C., Adjunct Professor, Widener University School of Law) and Patrick S. Sylvester (Attorney at Law, Sylvester Law Firm, PC) for bringing this case to my attention.

You can read more about this case on Neil's blog at PA Elder, Estate & Fiduciary Law Blog.

Ownership of a Decedent's E-mail Remains Controversial

Jonathan J. Darrow  (Assistant Professor of Business Law, Plymouth State University) and Gerald R. Ferrera (Gregory H. Adamian Professor of Law, Bentley College) have recently published their article entitled Who Owns a Decedent's E-Mails: Inheritable Probate Assets or Property of the Network?, 10 N.Y.U. J. Legis. & Pub. Pol’y 281 (2006-2007).

Here is an excerpt from the introduction to their article:

In early 2005, military dad John Ellsworth made national news through his seemingly innocuous request to be allowed access to his deceased son's e-mail account. His twenty-year-old marine son, Justin, was killed in Fallujah on November 13, 2004, by a roadside bomb. Mr. Ellsworth wanted to collect e-mails that his son wrote and received while in Iraq to create a memorial in his son's honor. Were his e-mails similar to "sending a first-class letter," with all of the attendant implications for ownership and inheritability, or is the comparison mentioned in Lipsitz inaccurate? ***

This Article is divided into six parts: Part II outlines some copyright basics and addresses the copyright status of e-mail messages as well as the current de facto control of e-mail by service providers independent of copyright implications. Part III suggests bailment law as an appropriate framework for the analysis of the legal status of e-mail held by a third party, and also offers comparisons to warehouse law and the law of safe deposit boxes. Part IV summarizes the current legal status of e-mail, explains why privacy arguments may be inapposite in the case of a decedent's e-mail, and sets the stage for the recommendations in Part V. Finally, in Part VI, the Article concludes with a comparison of e-mail to paper and pen (first class) letters and their attendant ownership and intellectual property interests. The article suggests that e-mail, as a unique kind of property, has not been given sufficient legal protection as an inheritable probate asset and that legislative action could provide some much needed certainty in this developing area of law.

The Hot Areas in the Legal Profession

According to the December 2007 RDA Legal Communique ... report by Robert Denney Associates, Inc., Estate Planning & Administration are currently two of the “hot” areas of the law.

The report proposes that high demand is due to the fact that Baby Boomers are starting to retire.

Techniques to Avoid Brook Astor’s Power of Attorney Problems

Earlier on this blog, I discussed the most recent developments in the administration of Brook Astor’s estate. Many problems in this case stem from the fact that Astor gave her son, Anthony Marshall, a power of attorney.

Rachel Emma Silverman and Ashby Jones, How to Ensure Relatives Don't Rip You Off, online.wsj.com, Nov. 28, 2007 list the following techniques used by estate attorneys in order to avoid power of attorney abuse:

• Including provisions requiring regular accounting statements from agents
• Naming co-agents who can serve as checks on each other
• Naming a supervisor who has the power to fire an agent
• Naming an agent while you're still in good health and can make clear decisions
• Designating someone trustworthy
• Laying out exactly what powers you want your agent to have
• Using a springing power-of-attorney document
• Using a non-springing power-of-attorney document
• Using a revocable living trust

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

Steve Fossett Update

Earlier on this blog, I discussed Steve Fossett’s disappearance and his wife’s petition to declare him legally dead.

Harlan J. Protass, How To Prove Your Spouse Is Dead, slate.com, Nov. 29, 2007, has more on this story:

How do you prove that someone is dead without a body?***

Wait seven years and file an application with a court.***

That Fossett has been missing for only months rather than years shouldn't impede his wife's application, though, because she's not trying to have him declared dead in the broadest legal sense. Instead, she's filing under an Illinois statute that uses more relaxed standards for the presumption of death (and no seven-year requirement).***

Here is additional information from Michael Higgins, Court is asked to declare Fossett legally dead, chicagotribune.com, Nov. 27, 2007:

[Steve] Fossett's wealth is vast, surpassing eight figures in liquid assets, various entities and real estate," the court petition said.***

It could take two to three years to distribute Fossett's assets.***

Steve has not accessed any of his assets since his disappearance. Steve had no debt and no life insurance."***

Evel Knievel’s Estate Owes Shelly Saltman Over $100 million

Evel Knievel, a daredevil motorcyclist, died on Friday, November 30, at the age of 69. His debts, however, did not die with him.

John Rogers, Beating Victim Goes After Knievel Estate, news.aol.com, Dec. 3, 2007, has more details on this story:

Of all the bones Evel Knievel broke over the years, the costliest may have been the left arm of a PR man by the name of Shelly Saltman.

Saltman won $12.75 million in damages against Knievel after the motorcycle daredevil attacked him with a baseball bat in 1977 in a rage over a book Saltman had written about

With interest, the still-uncollected sum has grown to more than $100 million[.] ***

Whether Knievel's estate has that kind of money is unclear. ***

Special thanks to April Wiuff (J.D. Candidate, Texas Tech University School of Law) for bringing this article to my attention.

Sizable Contingency Fees Are Not Just for Personal Injury Cases

New York First Department has ruled that a 40% contingency fee was not unconscionable in an estate litigation case where the law firm had already received $18 million in hourly fees and $5 million in gifts for the partners.

Anthony Lin, Late 40 Percent Retainer Pact Survives Widow's Dismissal Bid, NY L.J., Nov. 29, 2007, reports:

Though contingent fees of such magnitude are not uncommon in personal injury cases, they are rarer in estate cases. ***

[T]he appellate court majority said the propriety of both the retainer agreement and the gifts depended upon Ms. Lawrence's capacity at the time she entered into it, and that her advanced age was not dispositive of the issue.* **

Graubard Miller's lawyer, Mark Zauderer of Flemming Zulack Williamson Zauderer, said Tuesday that Ms. Lawrence was a sophisticated woman who had entered into the fee agreement with full knowledge. He said the firm was delighted with the 1st Department's decision. ***

Special thanks to Jim Hartnett, Jr., (Attorney at Law, The Hartnett Law Firm) for bringing this article to my attention.

Is Steve Fossett sufficiently missing to be deemed dead?

Steve Fossett, a famous American adventurer disappeared in September while taking a pleasure flight in rugged Western terrain.

Here are more details on this story from Mike Robinson, Court Asked to Declare Steve Fossett Dead, news.aol.com, Nov. 26, 2007:

The wife of millionaire adventurer Steve Fossett *** asked a court Monday to declare him legally dead.***

The request was a step toward resolving the legal status of Fossett's estate, which *** is "vast, surpassing eight figures in liquid assets, various entities and real estate[.]" ***

Fossett had become one of America's best-known adventurers in more than a decade of pouring his fabulous wealth - earned in Chicago's commodities markets - into chases for world records in sailing, ballooning and other rugged and sometimes dangerous outdoor activities. ***

While the wreckage of the plane has not been found, the petition said there was no chance that Fossett might somehow have survived. ***

Special thanks to Sara Hudman (J.D. Candidate, Texas Tech University School of Law) for bringing this article to my attention.

Pennsylvania May Require eBay Sellers to Get Live Auctioneer Licenses

The state of Pennsylvania has begun to regulate sellers who sell other people’s items on eBay.

Ford Turner, Ebay sellers pushed to get auctioneer licenses, pennlive.com, Nov. 17, 2007 reports:

The state claims that people ***who accept things on consignment from other people and sell them using *** eBay — are auctioneers and must obtain traditional state auctioneers’ licenses.

The enforcement push means that online sellers would have to serve apprenticeships with traditional auctioneers or take college auctioneering courses.

At least two bills awaiting committee action in the Legislature were designed to deal with eBay auctioneering.***

Rob Wonderling, R-Montgomery, said there are more than 15,000 state residents who make most of their money by trading and selling on the Internet.

His bill would remove any requirement for licensing residents who use online trading platforms.***

Another bill in the state House of Representatives would require online sellers of other people’s items to register, pay a fee of about $100, and secure a bond that would cost about $50[.]***

Special thanks to Neil E. Hendershot, Esq. (Attorney at law, Goldberg Katzman, P.C., Adjunct Professor, Widener University School of Law) for bringing this article to my attention.  Neil concludes that "[i]f a fiduciary in Pennsylvania decides to consign tangible personal property for liquidation through an online listing agent, like an eBay selling service, check for its auctioneer's license."

James Brown Update

The controversies regarding the estate of James Brown continue to swirl.  Here is the latest as reported in AP, Lawyer: James Brown estate shortchanged, CNN.com, Nov. 16, 2007:

A company that handles royalties and income from commercials and other projects for James Brown's estate has significantly less money than it should, a lawyer for the late soul singer's family said.

Much of the money that was supposed to be going to James Brown Enterprises Inc. instead ended up in a company established by a former trustee accused of misappropriating $7 million from the singer, attorney Louis Levenson said Thursday after a court hearing to sort through Brown's finances.

The company collected money earned by Brown's endeavors while he was alive and continued to do so after he died on Christmas, but never gave the money to the singer, Levenson said. * * *

David Cannon, who quit working for the estate in August after being accused of taking money from it, testified that Brown's work earned millions of dollars a year. * * *

Judge Jack Early ordered Cannon to pay $373,000 to Brown's estate within five days, but Cannon said he couldn't afford that. He instead offered his beach property in South Carolina, which he said was valued at nearly $2 million.

Cannon acknowledged that in August he made an $866,000 deposit to build a house in Honduras, where he planned to retire next year. He said he was currently unemployed and being audited by the IRS. * * *

The hearing is to continue next week as Brown's trustees and family wrangle over the total value and ownership of his estate.

Several people claiming to be Brown's previously unacknowledged children, and at least two women who say they were married to him, have come forward wanting a piece of his estate.

The judge ruled that former backup singer Tomi Rae Hynie, who claims she was the singer's fourth wife, could return to Brown's Beech Island home next week.

Hynie has said she hoped to retrieve some personal items from the home, but that trustees were stalling her.

Special thanks to Neda Jahansouz (J.D. Candidate, Texas Tech University School of Law) for bringing this show to my attention.

Surrogate disqualifies an executor due to her attorneys’ prior vexatious conduct

Roseanna DeLaune died intestate in 1997. Her sister, Paula M. Venezia, who was statutorily appointed as an executor, hired as counsel her childhood friend, Alfred Sica. Sica hired the law firm now known as Vaneria & Spanos. During the administration of DeLaune’s estate things turned hostile between Sica and one of DeLaune’s heirs, her disabled nephew William Pennington III. In 2003, Venezia died leaving her $1,000,000 estate to the same nephew Pennington, and nominating her goddaughter, Joanne Zaccaria as an executrix.

Zaccaria hired the same attorneys who were handling DeLaune’s estate. Pennington, who has had a contentious relationship with this counsel, opposed Zaccaria’s appointment as an executrix as well as her choice of attorneys. Surrogate Margarita Lopez Torres ruled in his favor. As a reason for Zaccaria’s disqualification as an executrix, Surrogate cited Zaccaria’s attorney’s "vexatious conduct" during the administration of DeLaune’s estate.

Here are more details on this story from Mark Fass, 'Vexatious' Attorney Conduct Results in Removal of Executor, law.com, Nov. 12, 2007:

"The testimony shows that Alfred Sica, in his capacity as co-conservator in the DeLaune estate, failed to communicate with Pennington as to the progress of the conservatorship where Pennington testified that Sica 'stopped being responsive to my inquiries[.]' * * *

In the DeLaune case, Sica denied the then-indigent Pennington's request for a disbursement that would allow him to retain counsel[.] * * * Pennington, who suffers from several disabilities, sought the appointment of a guardian to defend his interests, which Sica also opposed.

Personal Representatives Sue Law Firm for Increased Administration Costs Due to Wrongful Appointment of a Trust Company