Articles Posted in Estate Administration

There are challenges that people encounter that may become legal problems, such as eviction or the untimely death of a loved one.  Sometimes hiring an attorney can seem daunting during the most difficult time of one’s life.  In response to public need, some Courts have help desks or help centers for unrepresented litigants.  This post will describe the shortcomings of such help centers and our proposed solution from the perspective of Surrogate’s Court matters.

Probably nothing is more difficult than the death of a loved one.  Not only are emotions heightened, but practical legal and financial issues need to be navigated.  A Court’s help desk may provide procedural advice on the proper from that should be used, but may omit specific advice on how to actually complete the form or other general legal advice.  Laypersons are ill-equipped in possessing the technical knowledge that an experienced attorney has to complete all documents required for a successful Court filing so that the Court can appoint a legal fiduciary to handle estate affairs.

A qualified attorney will recognize complex estate matters and will be more readily able to make the proper Court filings that the Court will require.  Otherwise, the Court will inevitably delay the case when it requests additional filings that an experienced attorney would have already anticipated.  Of course, a legal expert is required for contested estates, where a party challenges the validity of a Will being submitted for probate or other contested matters such as who may be the best person to serve as the fiduciary of the estate.  Other examples of complex estates may entail those with non-marital children, a handwritten will submitted for probate or multiple wills presented for probate.  A Court’s help center does not provide legal representation and cannot provide the personal attention that a survivor needs in complex estate matters.

News outlets recently reported the tragic death of Shannen Doherty at the young age of 53.  Ms. Doherty was best known for playing “Brenda Walsh” in the series “Beverly Hills, 90210.”  She was diagnosed with cancer in 2015 and bravely fought against the disease until her death.  The actress was survived by her mother, brother and estranged third husband, as well as her dog.  She did not have children.  Knowing that she was terminally ill allowed her to make  appropriate personal and legal plans.

It has been reported that Ms. Doherty made her funeral wishes and preference for the disposal of her remains known to those close to her.  The actress handled these aspects properly.  It is not preferable to request that your attorney include these preferences in a Will for the following reasons.  The survivors are most likely to have the funeral conducted and the remains disposed of before locating a Will or other written directions from the deceased or her attorneys.  Then, it may be discovered too late that these activities were conducted in a fashion contrary to the desires of the deceased.

Ms. Doherty had an extensive furniture collection and more personal belongings than she needed.  She wanted to make things “easier for her Mom” by selling her belongings as she prepared to pass away.  Also, if her personal property in effect was converted to cash through sale, arguments over who would receive her personal property could be avoided.

Many viewers have been intrigued by the popular television series The Golden Bachelor, in which an older widower selected the second love of his life as his fiancee.  The widower was portrayed as absent from the dating scene after the death of his wife.  On the eve of the final episode, an article was published describing the bachelor’s relationship after the death of his wife with a live-in girlfriend and unsavory details about the golden bachelor (Gerry).  For instance, Gerry’s thrifty side allegedly caused him to “go dutch” on all expenses and activities with his girlfriend.

One distinguishing factor between the show’s two finalists (Leslie and Theresa) was that Theresa may be wealthy.  During their last date, Gerry asked Theresa about her professional life.  She stated that she was a homemaker before she dappled in the stock market.  She was successful trading stocks for herself and then started a career as a financial services professional.  Gerry, who has been reported to have a questionable professional history, was quite impressed by this information.  Perhaps the golden bachelor is actually a gold digger seeking wealth.  This post will examine estate matters to be addressed on behalf of older individuals such as Gerry and Theresa, aged 72 and 70 respectively.

A newly engaged couple with children and grandchildren from a prior marriage should seek the advice of an experienced attorney.  It would be prudent to draft estate documents whereby the second spouse would not inherit outright, but would receive income during lifetime from assets held in a testamentary trust, with the balance to be delivered to the children or grandchildren of the first marriage.  This plan will protect the spouse’s family of the first marriage from a second spouse who may be motivated by acquiring wealth from the new spouse.

The recent death of Matthew Perry, best known for playing “Chandler Bing” on the popular sitcom Friends, has deeply affected many of our readers.  Although Perry was known for his fabulous sense of humor, the dark side of his life was notable for his addiction to alcohol and drugs, almost causing his death numerous times.  His painful life was documented in his memoir entitled Friends, Lovers and the Big Terrible Thing.

The Emmy nominated actor may be “The One with Estate Issues.”  Although this author is not privy to the details of Mr. Perry’s estate, this post will discuss some of the estate concerns that could arise.  Mr. Perry died at his home in California.  Most if not all of Mr. Perry’s estate will be determined by California law as a result.  However, if he happened to have owned a pied-a-terre in Manhattan, the disposition of that property would be determined by an ancillary proceeding in New York after the completion of any California proceeding.  The remainder of this post will address the legal result as if Mr. Perry had died in New York, since the legal matters covered by this blog deal with New York law.

It must be determined whether or not Mr. Perry had a Will.  If there was a Will, it would be subject to a probate proceeding, whereby the Will would be submitted to the Surrogate’s Court and Letters Testamentary would be issued to the named Executor.  In order for a Will to be valid, the testator (person making the Will) needs to have mental capacity and not be impaired by alcohol or drugs when signing the document.  Certainly, a person such as Mr. Perry may have had issues concerning mental capacity when signing a Will.  However, experienced attorneys who properly conduct the will execution ceremony will not proceed if their client appears impaired at the time of signing.  Likewise, the witnesses should simultaneously sign a “self-proving affidavit” whereby they are confirming that the testator was of sound mind and under no physical or mental impairment that would affect his capacity to make a valid Will.