Wills, Trusts & Estates Prof Blog

So tell me how you really feel?

A will is a property transfer document, similar to a deed.  The basic difference is the a deed is effective upon delivery while a will does not take effect until death.  As a method of property transfer, a will is not the appropriate place for a person to extol the evils or virtues of family members.  Nonetheless, many people cannot resist the compulsion to leave one final biting message as described in Alex Ginsberg, Slain Couple's Weird Will, NY Post, Aug. 26, 2008:

• Mark Schwartz and Christina-Maria Petrowski-Schwartz were murdered in their Brooklyn home in July 2008.
• Several unsigned drafts of wills were found. Thus, it is unlikely that any of the provisions discussed below will actually be effective.
• Here are some of the provisions of Mark's documents:
  • "To my brother who I know hopes to be in my will, well, here you are."
  • I leave my brother "the sum of zero ($0.00) dollars. I believe this sum is fitting, as you are probably the most greedy person I know."
  • "So, Robert [brother], you have a choice, you can come to my grave sit to say hello out of love or piss on me for not giving you money."
  • He wanted to be buried at sea but if that was not possible, suggested "a beach party with strippers."
  • He left $25,000 to some of his friends on the condition that they do not tell their wives so "they may not get their hands on same."
  • He placed curses on various people if he did not get a proper burial such as for electricity never to work, radios not to play, and guns never to shoot.
• Here are some of the provisions of Christina's documents:
  • She left $10,000 to a battered women's shelter in the name of her ex-husband.
  • She gave $1 each to her mother, father, and siblings because they had a "distorted version of Catholicism" and "were never there for myself or my children."

Special thanks to Jeffrey A. Yates (Senior Associate Attorney, Albin|Harrison|Roach, Plano, Texas) for bringing this article to my attention.

The James Brown Auction -- What Happened?

Earlier on this blog, I reported that on July 17, 2008, Christie's was preparing to auction off a large portion of James Brown's estate.  Now, a report of that sale from Guy Trebay, More Tag Sale Than Tribute, NY Times, July 20, 2008:

• 328 items were auctioned.
• The results were considered "disappointing."
• The auction raised only $857,688 when projections were around $2 million.
• Some people were upset that the break up of the estate would prevent the formation of a comprehensive collection or museum in the future (compare Graceland for Elvis).
• Some items were in pristine condition despite being over 35 years old.
• The highest price paid for an item was $47,500 for a black satin cape with bead-work and Brown's name embroidered inside the collar.

Special thanks to Phyllis C. Smith (Assistant Professor of Law, Florida A&M University College of Law) for bringing this article to my attention.

Would it have been better for an organ donee to have died?

Organ donation can be a wonderful thing -- it can give people who would otherwise have died years or even decades of additional life.  But, what if the person saved by the organ donation turns out to be "evil," e.g., a serial killer, the next Hitler, or the person who starts the final nuclear conflict?

Although this sounds more like the plot of a Hollywood movie, a similar situation appears to be developing in Minnesota as reported in Chris Welch & Wayne Drash, Police say heart transplant teen plotted murder, CNN.com, Aug. 29, 2008:

• Andrew Busskohl received a heart transplant at age 14.
• Andrew has now been arrested at age 18 for a break-in attempt.
• While investigating, police discovered that the break-in was a part of a murder plot.  He was planning to cut out the victim's heart and/or slice off his eyelids. 
• In Andrew's car, police found the name and address of his intended victim who lives four blocks away and the equipment and supplies necessary to carry out his plan, e.g., shoe covers, a pry bar, mask, a knife, scalpel, latex gloves, etc.
• Andrew posted $100,000 in bail and is now out of jail provided he undergo psychological evaluation.
• His defense attorney (Joe Friedberg) claims that Andrew's medications (anti-depressants and anti-rejection drugs) are the cause of his problems.
• Neighbors live in fear of Andrew; they were shocked that he was allowed out on bail.  Many have increased security precautions.
• Neighbors are upset that Andrew has not been charged with attempted murder.

Mary Ellen Bendtsen Update

Earlier on this blog, I discussed the intriguing case of Mary Ellen Bendtsen:

• Links to extensive background material showing how Mary Ellen was allegedly subjected to undue influence and other acts amounting to elder abuse.
• Watch a video of her executing her will which was later denied probate for not being witnessed in her Mary Ellen's presence.  (The court thus sidestepped the lack of capacity and undue influence claims.)

The following details are from Brandon Formby, Texas Supreme Court refuses Swiss Ave. mansion appeal, Dallas Morning News, Aug. 30, 2008:

• On August 29, 2008, the Texas Supreme Court refused to hear an appeal of the case.
• The refusal basically means that Mary Ellen's daughter (Frances Ann Giron) is the sole heir to her estate.
• The status of criminal charges against the beneficiaries of the will which was denied probate is uncertain.  These beneficiaries are accused of attempting to steal Mary Ellen's interest in her mansion (4949 Swiss Avenue).

Special thanks to Neil E. Hendershot, Esq. (Attorney at law, Goldberg Katzman, P.C., Adjunct Professor, Widener University School of Law) for bringing this development to my attention.

Donated Brains -- Rightly or Wrongly?

Here is a summary of an interesting organ donation case based on Carol Smith, Appeals court keeps alive lawsuit over organs donated for research, Seattle Post-Intelligencer, Aug. 26, 2008:

• Bradley Gierlich died in 1998 intestate and without written body disposition instructions.
• The King County Medical Examiner's Office was unsuccessful in contacting Brad's dad about possible donations.
• The M.E. donated parts of Brad's brain for research; Brad was mentally ill and the research concerned schizophrenia and bipolar disorders.
• Robinette Amaker (Brad's sister) claims Brad orally told her he did not want his organs to be donated.
• Robinette sued the county and the research institution for interference with a corpse and on various other theories.
• A lower court ruled that Robinette lacked standing to sue because she was not "first in line" to make donation decisions (Brad's dad has a higher priority).
• The United States Ninth Circuit Court upheld the lower court's dismissal of the invasion of privacy and civil conspiracy claims.  However, it has left up to the Washington Supreme Court to decide on Robinette's standing.
• The court indicated that it was up to the Washington Court to decide if its version of the Uniform Anatomical Gift Act gives family members an implied right to sue for damages if organs are mishandled.

Is being "too generous" to help animals against public policy?

As most readers are already aware, Leona M. Helmsley left the vast majority of her $4 billion fortune to a foundation to benefit dogs.

The battle is now being waged between people who think the law should either not enforce or somehow restrict a person's charitable desires and others who believe that a person should be able do with their property as they so desire.

Earlier on this blog, I reported on the attack against Helmsley's intent lead by Ray D. Madoff (Professor of Law, Boston College Law School) who believes that charitable gifts such as her causes "American taxpayers [to] subsidize the whims of the rich and fulfill their fantasies of immorality." Rather than arguing that the charitable deduction is poor policy generally as every deduction be it for charity, a gift to a spouse, or an annual exclusion gift, increases the tax burden on everyone else, she claims that the charitable deduction should be limited as follows:

There should be a limit — a dollar amount or a percentage of the estate — on the estate tax charitable deduction. People could still give to charity as they like, but after a point they would be giving after-tax dollars. The deduction should be lower for bequests to private foundations than for money given directly to good causes.

There is an unstated assumption in Prof. Madoff's argument, that is, that is it appropriate to impose a gift or estate tax in the first place.  Prof. Madoff claims that it is unfair for donors to tie up "our[]" resources.  What she fails to recognize is that none of the resources which the donors are restricting belong to "us" -- they belong to the donor.

A formal response has now been made to Prof. Madoff's attack by Leslie Lenkowsky (Professor of Public Affairs and Philanthropic Studies, Indiana University), Should a Big Bequest Go to the Dogs?, Chronicle of Philanthropy, Aug. 21, 2008.   He explains that:

Whatever one might think of her judgment in leaving the bulk of her estate to care for dogs, it was her money, and as the Nobel Prize-winning economist Gary Becker wrote in his blog, "Respecting individual preferences, no matter how idiosyncratic, is one important measure of a free society, even when those tastes relate to bequests and inheritances."

Prof. Leslie points out that "helping animals has long been accepted as a charitable purpose."  Although this may not have been case centuries ago, in 1918, the United States Congress passed legislation providing that the prevention of cruelty to animals (as well as children) was a valid charitable purpose.  He also concludes:

In a society that values individual rights, philanthropy gives those with such differing views opportunities to act on them constructively, regardless of what others may think. That is why public policy in the United States, if not always elsewhere, encourages it and gives it broad, but not unlimited, scope.

On September 5, 2008, these two opposing sides will debate the issue at a lunch session sponsored by the Hudson Institute's Bradley Center for Philanthropy.  Panelists will include the aforementioned Prof. Madoff and Prof. Lenkowsky as well as Pablo Eisenberg and Judge Robert H. Bork.  More details of this event are available at http://philanthropy.com/extras.

For readers interested in advice on how to prepare a will or trust to provide for the care (although probably in a more modest amount) of a pet animal, see Estate Planning for Pet Owners.

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

How well does the law of wills and trusts interface?

Alan Newman (Professor of Law, University of Akron School of Law) has recently posted an article on SSRN entitled Revocable Trusts and the Law of Wills: An Imperfect Fit.

Here is the abstract of the article:

Over the centuries that wills have been used to dispose of testators' property at death, the law of wills has developed to address issues that arose. Similarly, over the centuries that trusts have been used for non-testamentary purposes, the law of trusts has developed to resolve resulting issues. In recent decades revocable trusts have become the most commonly used trust in the United States. To avoid estate administration, particularly in states in which administration involves cumbersome, time-consuming, and expensive court supervision, settlors make inter vivos transfers of assets that otherwise would be subject to administration on their deaths in trust. Typically, the trust instrument provides that the settlor may revoke the trust at any time, in which case its assets are to be returned to the settlor, and designates beneficiaries to whom the trust assets are to be distributed, or held for the benefit of in one or more now irrevocable trusts, following the settlor's death. In short, revocable trusts have become increasingly popular as substitutes for wills. Not surprisingly, issues that traditionally have arisen in connection with the use of wills frequently also are arising when revocable trusts are used as will substitutes. Because revocable trusts are, to a significant extent, the functional equivalent of wills, the trend in both statutory and case law is to subject such trusts, and persons interested in them, to the same law that would apply if the settlor had instead used a will to provide for the disposition of her property at her death. In examining that trend, this article demonstrates that, while there are many revocable trust issues that are being, and should be, resolved by reference to the law of wills, there are many others for which that is not the case.

How to locate heirs and beneficiaries

Locating heirs and beneficiaries is often a difficult task.  The following excerpt from an outline by Lori J. Perlman, Esq. is reprinted with permission from the "Practical Skills Seminar on Probate and Administration of Estates," October 2006 Coursebook, published by the New York State Bar Association, One Elk Street, Albany, New York 12207. 

Identifying Distributees
   

Interview decedentʼs relatives, friends and neighbors; doormen and landlord, review decedent s address book and mail; a family bible sometimes contains a list of births and deaths on the front or back cover; check the Surrogate s Courts for records of known family members - distributees may have been listed as interested parties; birth and death certificates - give the names of an individual s parents; marriage records; medical records that may list next of kin; church baptismal records often list god-parents who may have information; death notices in newspapers; if family has a relationship with a particular funeral director, funeral director s records; cemetery records (a relative may be paying for perpetual care of a grave) and tombstones of decedent s family; census records; immigration records; social clubs or religious organizations of which decedent was a member; and professionals (decedent s doctors, accountant, lawyer, etc.).

 

Keep copies of any correspondence you send, and keep notes concerning any persons you contact, as you may need such information to document the scope and diligence of your search.
    

If none of the above methods is successful, private investigative search firms and genealogical experts can be hired to perform a search for heirs.  

 

Locating Distributees
    

Once the distributees are identified, it will be necessary to locate them.  Although it is not essential to find distributees whose whereabouts or identity are unknown at the time letters are sought (since service of process may be dispensed with upon such distributees), a diligent search will have to be performed.  Uniform Rule 207.16(d).  In addition, it will be necessary to conclusively establish the identity of the distributees before the estate is distributed.  If distributees are not found at the time of an accounting, process will have to be served upon the unknowns by publication (SCPA 307), and their share of the estate will likely have to be deposited with the Commissioner of Finance until the lost heir is found and can commence a proceeding to withdraw his or her share (SCPA 2223-2225).  It is extremely helpful to have the lost heir s date of birth and social security number, as many persons with the same or similar name may be located in a search.  In addition to the sources used in identifying the heir, the following sources may be helpful: decedent s old address books; old telephone directories; forwarding addresses at former residences; and advertisements in local newspapers.  Government Sources include: Social Security Department, which will forward a letter prepared by an attorney to a missing heir to the last known address, but will not provide you with any information concerning the lost heir other than whether the individual is known to be dead.  You should send a cover letter explaining your situation and including the missing heir s name, date of birth and social security number, and enclose the letter to the heir in an unsealed envelope.  Also the Bureau of Vital Statistics or the Motor Vehicle Bureau may provide an address or forward a letter to the individuals address.  An inquiry to a branch of the armed forces may also be of use if you are aware of the branch in which the missing heir served.
   

 Lexis-Nexis is also a good resource for conducting searches for the location of distributees once you have the name of the individual.  You can search through the People Pages library, judgments and liens library, property ownership library, etc.  

 

Additional Resources
    

An excellent guide to conducting a search is found in a New York Law Journal article prepared by former King s County Surrogate Bloom, among others, entitled  A Step-by-Step Guide to Conducting a Diligent Search.   NYLJ, Feb. 8, 1994, at 1, column 1.  A chart beginning on page 2 of the article provides contact information for several government agencies.  

 

Some genealogical researchers who have been used by counsel to the Public Administrator in the past include: Jaisan, Inc in New York (http://www.jaisaninc.com); Dennis Langel Investigations/Genealogy Research Corp in Huntington, New York http://www.findheirs.com/); Laurie Thompson in New York (490 West End Avenue New York, NY 10024, 212-724-1817).
   

 Online resources.  There are many resources for locating heirs on the web, some more successful than others.  Most are able to locate addresses and telephone numbers, and some provide more detailed searches for free.  Non-public information is not on the web.  Some sources for locating missing heirs (some free or partially free) include:

 

www.ci.nyc.ny.us and http://home2.nyc.gov/html/records/html/vitalrecords/home.shtml (for a New York city decedent) and http://www.health.state.ny.us/vital_records/ for New York residents outside of New York City.;
    

http://www.ssa.gov (Social Security Administration online);
    

http://vitalrec.com (identifies where to search for vital records, with a link to Ancestry.com's search engine);
   

 http://www.Ancestry.com (search for current address, Social Security death index, census, vital statistics and links to other sources);
 

http://www.superpages.com and http://www.anywho.com (search for current addresses in US and conduct reverse telephone directory searches);
  

http://www.knowx.com (public information search) [Update: KnowX was retired in summer 2017. A possible replacement service is  http://backgroundchecks.org/?]; http://www.docusearch.com (offers many free searches and locate searches, DMV driver & vehicle searches, telephone record searches, financial & bank searches, and criminal & property record searches); http://www.surnameweb.org/ (surname search, with a links to many other web pages and About.com s genealogy page); http://www.cyndislist.com/ (a list of genealogical webpages); http://www.gensource.com/ifoundit/ (another list of web pages); www.semaphorecorp.com/wdtg/jump.html (provides ability to track people who have moved, changed their names, e-mail addresses or web pages).

Lawyer in trouble for writing will leaving himself millions

A lawyer is in deep trouble after it was revealed he drafted a will leaving himself and his assistant $7 million from his client's estate.

Here are the details from Chris Tisch, A will casts a shadow on a prominent lawyer who stands to gain millions, St. Petersburg Times, Aug. 24, 2008:

• Jack S. Carey is a lawyer who formerly served on the St. Petersburg City Council and worked as an FBI agent.
• Jack drafted a will for Virginia Murphy leaving him and his legal assistant (Gloria DuBois) more than $7 million from her estate.
• At the time of will execution, she was frail and had various ailments such as cataracts, hearing loss, dementia, and depression.
• She executed six wills while she was in her 90s which contained similar provisions for Jack and Gloria.
• Virginia also named Jack and Gloria as her agent in a durable power of attorney for health care.
• Jack, Gloria, and an accountant who was also a beneficiary but who predeceased Virginia, signed an agreement stating that none of them have breached any fiduciary duties.
• Virginia died in 2006 at age 107.
• Virgina's second cousin (most likely her closest surviving relative) contested the will.
• On August 1, 2008, Judge Lauren Laughlin determined that Jack exercised undue influence on Virginia.
• Jack is appealing.

Note that in some states, such as Texas, the gift would be void according to an express statutory provision even without any evidence of untoward conduct by the attorney.

Demand for sophisticated estate planning may grow as number of wealthy individuals continues to increase

Despite the appearance of a poor economy, the number of wealthy individuals is actually growing according to Tom Herman, The Ranks of the Ultrawealthy Grow, Yahoo! Finance, Aug. 28, 2008, who explains:

About 47,000 people had a net worth of $20 million or more in 2004, the latest available year, according to new estimates by the Internal Revenue Service. While that was up only slightly from 46,000 in 2001, it was up 62% from 29,000 in 1998.

The IRS also reported increases in the number of people with a net worth between $10 million and $20 million: 79,000 people qualified for this group in 2004, up from 77,000 in 2001 and 51,000 in 1998.

California had the largest number of residents with a net worth of $1.5 million or more, with 428,000 in 2004. Florida came in second, with 199,000, followed by New York (168,000), Texas (108,000), Illinois (101,000), Pennsylvania (86,000) and Massachusetts (83,000).

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