Wills, Trusts & Estates Prof Blog

Creative life after death − or yes, you can control spinoffs from beyond the grave

The article discusses how the estates of deceased artists, like Michael Crichton, Isaac Hayes, and George Carlin, are involved in legal battles to protect their legacies and control over their intellectual property.

Michael Crichton’s estate is suing Warner Bros. for allegedly rebooting ER through a new medical drama The Pitt, invoking a "frozen rights" contract Crichton had signed, giving him and his estate approval rights over sequels. Such contractual rights can survive death, allowing estates to enforce them.

Copyright protection extends 70 years after an author's death, as shown by the estate of Isaac Hayes suing Donald Trump’s campaign for unauthorized use of his song, and Donna Summer’s estate’s lawsuit against Ye and Ty Dolla Sign for using her music without permission.

Publicity rights, which prevent unauthorized commercial use of someone’s name or likeness, also persist after death in some states. This is seen in George Carlin’s estate suing a podcast for using AI to mimic his likeness and voice. Little Richard's estate involved estate planning to ensure beneficiaries cooperated in managing his posthumous publicity rights, with penalties for interference.

These cases highlight how legal measures like contracts, copyright, and publicity rights help control the use of an artist’s work even after death, especially in the age of AI, where unauthorized reproductions are more common.

For more information see Naomi Cahn and Reid Kress Weisbord "Creative life after death − or yes, you can control spinoffs from beyond the grave" TheConversation.com, September 13, 2024. 

Special thanks to Naomi Cahn (University of Virginia School of Law) for bringing this article to my attention.

Grieving man refuses to give deceased wife's clothes to 'selfish' sister

A man took to Reddit to share his experience following the death of his wife from ovarian cancer. His wife, a corporate lawyer, had left instructions for her clothes to be donated to a women’s shelter she supported. During her illness, the man’s sister, whom he described as selfish and unsupportive, showed no interest in helping. However, after the wife’s death, the sister began asking for some of the clothes, claiming she wanted them as keepsakes. The man refused, noting that his wife had explicitly wished for the clothes to be donated.

The conflict escalated when the sister accused the late wife of being selfish even in death and criticized the decision to donate the clothes rather than keeping them within the family. The man, deeply offended, responded harshly, which led to his sister crying and their mother chastising him for his behavior. The mother suggested that the sister was grieving deeply and that the man should be more understanding, but he found this expectation unreasonable and left the situation feeling emotionally manipulated.

Seeking validation, the man turned to Reddit, where he received overwhelming support. Commenters criticized the sister’s behavior, agreeing that she had no right to demand the clothes and that her timing was highly inappropriate. A psychologist also weighed in, affirming that the man was not in the wrong and that he had no obligation to give away his late wife’s belongings unless he wished to do so. Many users encouraged him to focus on his own healing and to distance himself from his unsupportive family members.

For more information see Maureen Mackey "Grieving man refuses to give deceased wife's clothes to 'selfish' sister" Fox News, September 1, 2024. 

Billionaire's ex-wife makes claim about his pregnant new fiancée

John Paulson, a billionaire hedge fund manager, is embroiled in a legal battle with his estranged wife, Jenny Paulson, who has accused his new fiancée, Alina de Almeida, of orchestrating a plan to gain access to his $5.1 billion fortune. Jenny's legal team claims that Alina's pregnancy is a calculated move to secure financial benefits by expanding the class of beneficiaries to include the child, potentially causing financial harm to the daughters Paulson shares with Jenny. The couple's divorce proceedings began in 2021 after Jenny discovered Paul's relationship with Alina, and tensions have escalated as Paulson has since proposed to Alina.

Jenny's amended complaint argues that the pregnancy violates Domestic Relations Law by allowing a child born outside the marriage to potentially receive distributions from the trust established during their marriage. The complaint also accuses Paulson of violating the law by starting a new family while still legally married, which could create discord between his daughters and any future children. A source close to the case questions whether Paulson and Alina considered the potential financial benefits of having a child out of wedlock during the ongoing divorce.

In response, Paulson's attorney, Marilyn Chinitz, has denied the allegations and accused Jenny of attempting to enrich herself at the expense of her daughters. Chinitz argues that despite Jenny remaining one of the wealthiest women in the world post-divorce, she continues to push for more money out of a sense of humiliation that her daughters might be worth more than her. She asserts that the trusts will ensure the financial security of both Paulson's and Jenny's children for generations and urges Jenny to move on rather than prolong the legal battle.

For more information see Alexa Cimino "Billionaire's ex-wife makes claim about his pregnant new fiancée" Dailymail.com, August 30, 2024.

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.  

Estate planning lessons from the $600M fight over Michael Jackson’s music catalog

Michael Jackson's estate has faced ongoing legal challenges and tax disputes since his death in 2009, despite the continued financial success of his music. A significant event occurred in August 2024 when a California court approved the $600 million sale of Jackson’s music catalog, despite objections from his mother, Katherine Jackson, who argued that Michael never wanted his assets sold.

Jackson’s will, signed in 2002, left most of his estate to his children through a trust and granted his executors the authority to sell assets. Katherine Jackson's challenge was dismissed because the court determined that Michael’s will allowed such sales, emphasizing the importance of formally documenting wishes in a will.

The situation underscores the importance of clearly defined wills and the broad powers often granted to executors. It also provides lessons for estate planning, advising that wills should be carefully drafted with an understanding of executor powers. Imposing restrictions on asset sales can create challenges and may not align with future circumstances, as shown in a similar case involving Joseph Pulitzer. Ultimately, estate plans must be formalized in writing and carefully considered to avoid posthumous disputes and unintended consequences.

For more information see The Conversation's "Estate planning lessons from the $600M fight over Michael Jackson’s music catalog" Theconversation.com, August 28, 2024. 

Special thanks to Naomi Cahn (University of Virginia School of Law) for bringing this article to my attention.

Alain Delon’s family refuse to put down pet dog the actor wanted to be buried with

French actor Alain Delon, renowned for his roles in classics like "The Leopard," passed away at the age of 88. Before his death, Delon had expressed a heartfelt wish for his Belgian Shepherd dog, Loubo, to be euthanized and buried alongside him. In a 2018 interview, he described Loubo as his "end-of-life" companion and spoke of their deep bond, stating he wanted the dog to be put to sleep in his arms if he died first. This request, however, sparked significant controversy in France, particularly among animal welfare organizations.

Following the public outcry, Delon's family decided not to honor his unusual request. They confirmed that Loubo would remain with the family at Delon's Douchy residence. French animal welfare groups, including the Brigitte Bardot Foundation and the Society for the Protection of Animals (SPA), had strongly opposed the idea, arguing that an animal's life should not be conditional on that of a human. These organizations also offered to help find a new home for Loubo if needed, ensuring the dog would continue to live in good health.

For more information see Niamh Kennedy "Alain Delon’s family refuse to put down pet dog the actor wanted to be buried with" CNN.com, August 21, 2024.

A Battle of Wills: The Uniform Probate Code Versus Empirical Evidence

Adam J. Hirsch's (Napoleon Jones Professor of Law and Herzog Endowed Scholar, University of San Diego School of Law) article, A Battle of Wills: The Uniform Probate Code Versus Empirical Evidence, was recently published in 33 S. Calif. Interdisciplinary L.J. 277 (2024). Here is the article's abstract:

This Article explores the goals, methods, and present state of empirical research relevant to inheritance law. The Article synthesizes extant empirical studies-including unpublished ones and two original data sets presented here for the first time-and compares them with default rules currently found in the Uniform Probate Code. The Article proposes revisions to the Code based on those studies. Finally, the Article suggests changes to the Uniform Law Commission's oversight process to make the Code more responsive to empirical evidence as it emerges in the literature.

Bennett v. Gentile: Maryland Supreme Court Recent Decision

Pauline Bennett, the settlor of a revocable living trust, engaged attorney Thomas Gentile to draft her estate planning documents. Initially, the trust instrument provided for the distribution of her properties, including a specific property, Wissahican, to her daughter Audrey upon her death. Later, due to concerns about Audrey's financial mismanagement, Pauline amended the trust to remove Audrey as a beneficiary and intended to sell Wissahican to fund her care. After Pauline's death, a dispute arose between her daughters, Madelyn and Audrey, over the ownership of Wissahican.

The Circuit Court for Montgomery County ruled that the 2017 trust instrument, which provided Wissahican to Audrey, was still in effect, and thus Audrey was entitled to the property. Madelyn, as the successor trustee, then pursued claims against Gentile for legal malpractice, alleging that his negligent drafting of the 2019 trust instrument caused her to lose Wissahican. The circuit court granted summary judgment in favor of Gentile, holding that the strict privity rule barred Madelyn's claims and that she was not a third-party beneficiary of the attorney-client relationship between Pauline and Gentile.

The Supreme Court of Maryland reviewed the case and affirmed the circuit court's decision. The court held that the strict privity rule, as established in Noble v. Bruce, remains good law, meaning that a third party not in privity with an attorney cannot sue for negligence absent fraud or collusion. The court also concluded that Madelyn did not qualify as a third-party beneficiary because the primary intent of Pauline's engagement with Gentile was to ensure her own financial security and to exclude Audrey, not to benefit Madelyn directly. Therefore, Madelyn's claims against Gentile were barred, and the summary judgment in favor of Gentile was affirmed.

To read the full opinion see "Bennett v. Gentile" Justia, August 12, 2024.

Special thanks to Deborah Matthews (Virginia Estate Planning Attorney) for bringing this article to my attention.

Putting Pets in Your Will Is No Longer Just for Eccentric Billionaires

Including pets in estate planning, a practice once limited to the ultra-wealthy, is now a growing trend. While pet trusts, like the one created by Leona Helmsley, are still primarily for the rich, more common now is the pet directive. This section in a will allows pet owners to name guardians for their pets and allocate funds for their care.

Estate lawyers routinely ask clients about their pets during planning, as many people are concerned about their pets' futures. Online estate planning services have made it easier to include pets in wills, leading to an increase in pet guardianship provisions.

The article shares examples of pet owners who have named guardians and left money for their pets. It also highlights the challenges and considerations in deciding how much money to leave and the importance of planning, especially for long-lived pets. Without a plan, pets could end up in shelters or create disputes among heirs.

Pet trusts offer more safeguards but are more complex and expensive. The article emphasizes the need to choose reliable guardians, as they are responsible for following the pet owner's wishes, with little oversight in place.

For more information see Ashlea Ebeling "Putting Pets in Your Will Is No Longer Just for Eccentric Billionaires", The Wall Street Journal, August 10, 2024.

Inheritance on hold? Most Americans don't understand the time and expense of probate

A report titled The State of Probate in America reveals that many Americans are poorly informed about probate. A survey of 1,000 adults showed that over half don't know probate costs, less than half understand inheritance is not automatic, and only 2% know how long it takes to settle an estate, which averages 20 months.

Probate costs range from 3% to 7% of an estate's value. With a significant generational wealth transfer expected as baby boomers age, there is concern that millennials, many of whom are unprepared, will face confusion. Only 58% of millennials have discussed estate planning with older relatives, and 62% lack a will or trust.

Probate varies by state and even within states, complicating the process. Experts recommend creating an estate plan, consulting an attorney if possible, discussing wills with family, and naming beneficiaries to streamline the process. Preparing an estate-planning file with important documents and information can also ease the burden on loved ones.

For more information see Daniel de Visé "Inheritance on hold? Most Americans don't understand the time and expense of probate," USA Today, July 30, 2024. 

Special thanks to Naomi Cahn (University of Virginia School of Law) for bringing this article to my attention.

August is "National Make a Will Month"

August is National Will Month, a time dedicated to raising awareness about the importance of having a will. This observance encourages individuals to consider the legal, financial, and personal benefits of drafting a will. By highlighting the significance of wills, National Make a Will Month aims to reduce the number of people who pass away without one, ensuring that their assets are distributed according to their wishes and minimizing potential conflicts among surviving family members.

A will is a crucial legal document that outlines how a person's assets and affairs should be handled after their death. Without a will, the distribution of an individual's estate is left to state laws, which may not align with their personal desires. Having a will provides several key benefits. It allows individuals to specify how their assets should be divided, ensuring that their beneficiaries receive what they intended. This can include financial assets, property, personal belongings, and other valuables. A will can designate guardians for minor children, providing clear instructions on their care and making provisions for dependents with special needs. By clearly outlining one's wishes, a will can help prevent disputes among family members and potential legal battles over the estate. Additionally, a will can appoint an executor to manage the estate, ensuring that the deceased's affairs are handled smoothly and in accordance with their instructions.

Creating a will is a straightforward process that ensures your assets are distributed according to your wishes and provides peace of mind. Start by listing your assets and deciding on their distribution, including guardianship for minor children if necessary. Choose a trustworthy executor to manage your estate. You can draft your will with the help of an attorney or use online tools. Ensure your will is signed and witnessed according to state requirements, and consider having it notarized for added authenticity. Store the original will in a safe place, such as a fireproof safe or secure deposit box, and inform your executor and close family members of its location. By taking these steps, you can create a legally binding document that protects your loved ones and honors your wishes.