Articles Posted in Estate Administration

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.

Some of our clients have valuable personal property, such as artwork, antiques, baseball cards, figurines and the like.  They may wish to leave such collections in their Wills to a particular person.  In other cases, none of the potential survivors is interested in possessing and storing such a collection.  This post will address the best means by which to manage collectibles, known as personal property, in estate planning.

Collectibles by their nature are of interest mostly only to the collector, who may scour small stores and dealers during his lifetime to obtain such items.  The thrill is in the hunt for the unique baseball card that may complete a set and to then enjoy the display of such item in one’s home.  Collections of personal property are not only a financial investment to the collector, but provide a lifetime of enjoyment to the collector.  Potentially one family member may be interested in acquiring the collection after the person’s death.  In such a case, an experienced attorney will advise that the collection be appraised and mentioned specifically in one’s Will, so that it is clear that a particular person should inherit the collection.  Then, the person who will receive the collection may receive less from any remaining inheritance to compensate for the value of the collection.  For instance, if one child is interested in antique furniture owned by her mother, the mother or the Executor eventually appointed by the Surrogate’s Court can have the furniture appraised.  The child who will receive the furniture may receive less cash from the balance of the estate to compensate for the value of the furniture, so that the estate distribution is fair to all involved and the person who appreciates the collection receives it.

Another option is for the collector to give portions of the collection to family members during his lifetime, so that he has the satisfaction of observing the appreciation of family members who receive the items.  This is also helpful if the collector is downsizing and selling her home and may not have room for such a vast collection in the new home.

We were “all shook up” to hear the surprising news of the untimely death of Lisa Marie Presley, the daughter of Elvis Presley.  Ms. Presley passed away in California.  She may have had a Will that directed the disposition of her assets.  This post will address the legal result if Ms. Presley had died in New York without a Will, legally defined as intestacy.

Ms. Presley could not “help falling in love.”  She was engaged five times and married four times.  All of her marriages ended in divorce.  Her former spouses would not inherit under the New York intestacy statute.  Since Ms. Presley was survived by her children, her Mother Priscilla Presley, who also survived her, would not inherit any of her assets.

The intestacy statute would provide that Ms. Presley’s surviving children would inherit her entire estate.  Tragically, Ms. Presley’s son predeceased her.  If her son left a surviving child, such grandchild would inherit the son’s share.  If there was no surviving grandchild, then the son’s share lapses and is to be shared with his surviving siblings.  It should be noted that two of Ms. Presley’s daughters were only fourteen years of age at her death.  As a result, a Guardian is likely to be appointed by the applicable Court to manage the inherited assets on behalf of the underage children who cannot inherit outright.  Guardianships typically last until the child is 18 or 21 years of age, depending upon the circumstances.

It is not uncommon for children from a prior marriage to have a legal dispute with a surviving spouse concerning a Will.  The New York Post recently reported that the children of deceased hockey legend Rod Gilbert have sued his surviving widow concerning the disposition of his estate.  Hockey Hall of Famer Gilbert was a beloved Rangers player, known as “Mr. Ranger,” and was the all-time leader in goals and points for the blue shirts.  He accumulated a significant collection of memorabilia and enjoyed material wealth.  He married his second wife thirty years before his death.

The children from his first marriage have alleged that the stepmother pressured Gilbert to change his Will on his deathbed to eliminate them from receiving the collectibles and substantial cash.  There has been a claim that, during his lifetime, Gilbert promised to leave his children particular assets and that the documents prepared in his final days did not reflect promises made.  Suspiciously, the Gilbert home was sold less than two weeks before his death and the proceeds were then “not available” to pay monetary bequests to the children.

The stepmother in this case presented a letter allegedly signed by Gilbert that reversed the prior bequests of memorabilia to the children and instead gave them to his wife.  It should be noted that a letter is usually not valid to change the terms of a properly executed Will.  In order for a Will to be legally valid in New York State, it needs to comply with the Statute of Wills.  In addition, any amendment or revision to a Will needs to be accomplished by a Codicil that also needs to comply with the Statute of Wills in order to be legally valid.  A less formal “letter” is highly unlikely to comply with the requirements of a Codicil in order to amend the Will terms.

News outlets have reported on the untimely death of actress Anne Heche.  The late actress was allegedly driving under the influence of alcohol and illegal drugs when she crashed into a Los Angeles area home.  She died shortly thereafter from injuries suffered in the crash. As to the unlucky homeowner, the crash caused a fire that destroyed the house and all of the possessions inside.  The homeowner has sued the Heche Estate for damages suffered in the crash.  This post will address how an Estate is to properly handle legal claims.

This author is not privy to details as to whether Ms. Heche had a Will.  If she had died in New York, her estate would be managed differently depending upon whether she had a Will.  A person can engage the services of an experienced attorney to prepare a Will and other estate documents that memorializes one’s wishes for the distribution of assets upon death, names those persons to serve as Executor, names guardians for minor children and other details.  When there is a Will in New York, one’s estate will be handled through a probate proceeding in Surrogate’s Court.  Should a person not have a Will, the estate will be distributed according to the law of intestacy.  In the case of intestacy, the surviving relative in the closest degree of relationship will serve as the Administrator.  Administration proceedings are also brought in Surrogate’s Court.

An Executor or Administrator, as the case may be, is a fiduciary and is obligated to address claims made against the Estate and pay liabilities before making distributions of assets as directed in the Will or in accordance with the intestacy statute.  The homeowner who has sued will have her claim addressed by the fiduciary appointed in the Heche Estate, who will most likely seek legal advice and respond to the Complaint.  The fiduciary’s role is to responsibly address claims, evaluate if they are legitimate and attempt to have them reduced before paying such claims with estate assets.  That way, the fiduciary is also preserving estate assets, which is another legal obligation of a fiduciary.

Long-time royal watchers were dismayed to hear the news of the death of Great Britain’s Queen Elizabeth II.  This author and others admired Her Majesty’s service to her country and her longevity.  While we obviously do not have royalty in the United States, many of us consider our ancestors to be royals on a personal level.  This post will address the unexpected parallels between the distribution of the Queen’s assets and property interests that may be held by our non-royal clients.

Queen Elizabeth II enjoyed the ownership and use of multiple castles.  Even though most Americans do not own castles, we still use the expression “a man’s home is his castle.”  This begs the question, who will receive one’s castle after a relative’s death?  If the property is held as joint tenants with right of survivorship, the last owner to survive will own the entire property automatically by “operation of law.”  This result is not unlike the likely result that The Queen’s castles are now automatically owned by her son who is now known as King Charles III.  Further, if the owners before death were husband and wife, the property is considered to be owned as tenants by the entirety, automatically leaving the property to the surviving spouse.

If the “castle” is not owned by marital spouses or as joint tenants with right of survivorship, then ownership will be determined by whether the deceased person had an experienced attorney draft a Will.  If there is no Will, then the laws of intestacy and an estate administration proceeding will be necessary.  Intestacy is similar to the rules of succession and inheritance by royals, in that the person(s) in the particular decree of relationship stand to inherit the subject property.

Many of our readers are aware that the United States Supreme Court recently overturned Roe v. Wade, its landmark decision wherein it determined that the right to privacy derived from the 14^th Amendment to the Constitution applies to abortion rights.  Dobbs v. Jackson Women’s Health Organization , found that abortion rights should now be determined by each individual state, instead of at the Federal level.  Justice Samuel A. Alito, Jr., as lead author of Dobbs, wrote that the Court was ruling with respect to abortion rights only, but not as to other rights derived from the line of right to privacy cases, such as contraception and same-sex marriage.  The concurring opinion of Justice Thomas in Dobbs raised concern because he suggested that the Court should reconsider other privacy cases.  While it is not this author’s intent to comment on the abortion rights debate, it is the intent of this post to highlight legal protections required by same-sex couples, particularly with respect to estate planning should marriage equality not be consistently upheld on the Federal level.

In Obergefell v. Hodges , the Court found that same-sex marriage is a right derived from the 14^th Amendment to the Constitution.  However, if this decision is reexamined and overturned, the implications for same-sex couples could be severe.  Those persons already married may have the rug pulled out from under them and be legally considered to be unmarried, depending upon their state.  It should be noted that there is a movement to pass legislation at the Federal level to codify the right to same-sex marriage.  Such legislation may not be ultimately passed into law or could be overturned by future Supreme Court rulings.

Unmarried couples should engage the services of experienced attorneys to draft estate documents, such as Wills, Trusts, Living Wills, Health Care Proxies and Powers of Attorneys.  The reason for this activity is that the law generally considers that default decision maker to be the spouse with respect to end of life health care decisions and distribution of assets.   Same-sex partners may not always be considered to be legal spouses if judicial decisions continue to follow this conservative route.  If a person dies without a Will in New York, the applicable statute determines the distribution of assets and who may be the Administrator of the Estate.  Unless same-sex marriage is consistently recognized, a same-sex partner may be excluded from receiving assets and from acting as Administrator.  Family members who are estranged from the deceased could take the place of the intended life partner in this event.  The best way to prevent this outcome is to have professionally prepared estate documents in place that comply with one’s wishes and clearly state that the same-sex partner is to inherit and serve as fiduciary for the Estate.

News outlets have reported the recent death of rap icon DMX, whose real name was Earl Simmons.  The New York rapper was born in Mount Vernon and raised in Yonkers, the territory served by our law firm.  Two candlelight vigils are being held for DMX in order to soothe his grieving fans.  DMX anticipated such events when he rapped “[t]hink when you die, how many’s gonna miss you.”  Since Simmons lived in Westchester County  at the time of his death, his estate case will now proceed in the Westchester County Surrogate’s Court.  Arguably the most notable characteristic of DMX’s life is that he was allegedly the father to fifteen (15) children.  This post will examine the legal issues that arise from DMX being the father to so many offspring.

This author is not privy to the details of DMX’s estate, but is using the procreative life of DMX as a springboard for discussion.  For the purposes of this post, we will assume that the closest possible heir is a child rather than a spouse.  If Simmons had a written Will, it would be subject to a probate proceeding.  Without a Will, DMX would be considered to have died intestate and those persons in the closest order of relationship would inherit.  Even in a probate proceeding, those persons who would have inherited according to the intestacy statute have the legal right to challenge the Will, so that they would potentially share in the inheritance.  With 15 children, certainly there will be such challenges as these persons will need to prove that they are related to DMX in order to inherit.  Each child may have a stronger case to inherit depending upon whether DMX was married to their mother, whether DNA evidence links DMX to the child, or if DMX formally acknowledged the child as his in writing.  As DMX understood it, “[m]y dogs is dogs with official bloodlines.”

Inheritance by non-marital children is permitted under certain circumstances in New York State.  Such a non-marital child can be determined to be the legitimate child of the father (with the right to inherit from him) under specific circumstances.  The Court during the father’s lifetime would need to issue an Order of Filiation declaring paternity or the mother and father of the child would need to sign a written acknowledgement of paternity and have such document notarized.  The father could also sign a written acknowledgement of paternity before a notary public, which document is required to be filed with the putative father registry, proceeds to the department of social services and is legally served on the mother.