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The New York Times just published a question and answer in its "Social Q's" section regarding the legal validity of an unsigned Will. Another recent article referenced a Will written in a draft text message. Naturally the text also remained unsigned. The text message was approved as a valid will by an Australian court. In the U.S., probate courts are not usually so flexible when it comes to what constitutes a valid will.
Without a signature, is a Will still valid in the eyes of the Probate Court? Let's look specifically at California Probate Law.
The easy answer is No. Without a signature, a Will is not valid. The more complicated answer is - if you have a good lawyer - the unsigned will might give you some leverage.
And the answer for the rest of us is - sign your estate documents and do it with a reputable estate planning attorney. But we've all heard that one before. So let's move on to the juicy stuff.
In the Times' article, Marie writes that her brother and his wife loved their Uncle Eddy. In fact, the brother & wife were apparently the only ones who loved Uncle Eddy. Eddy had three siblings, none of who spoke to him. Maria's brother and wife, on the other hand, spent a significant time with Uncle Eddy. Or at least as much as they could stand. Then Uncle Eddy died.
Now, before Eddy died he apparently wrote a Will leaving everything to Maria's brother and his wife. But he didn't sign it. According to intestate succession (the law governing asset distribution when there is no valid Will or Trust), Eddy's three siblings are entitled to his estate. Maria's brother and wife want to know what can be done. After all, the will clearly shows Uncle Eddy's intent to give everything to his nephew, right? And everyone knew Eddy did not like those pesky siblings. He certainly wouldn't want them to get his estate.
The Times reporter tells Maria that her brother and his wife are [ ] out of luck. The law is the law, right? And the will wasn't signed, so it's not valid. Simple as pie.
I can't speak to New York probate law, but in California it would certainly be worth having an experienced Probate Litigation attorney take a look at. If the will was written in the handwriting of Uncle Eddy (a holographic will), and the brother and his wife could show some kind of proof that Uncle Eddy intended to sign it and had just made a mistake - they might just have a chance. In the landmark case of 2015, Estate of Duke, California courts ruled that:
an unambiguous will may be reformed if clear and convincing evidence establishes that the will contains a mistake in the expression of the testator's intent at the time the will was drafted and also establishes the testator's actual specific intent at the time the will was drafted.
Estate of Duke effectively established that California probate courts can use extrinsic evidence (evidence contained outside of the actual document) to determine the intent of the testator.
Testator = person that died leaving a will or trust in place
The bottom line is don't ask the New York Times if you have a legal question- ask an attorney who specializes in the relevant field of law. When it comes to questions around the validity of a will or trust, ask a Trust and Probate Litigation Lawyer.
Our office specializes in Trust and Probate Litigation in Contra Costa County and Alameda County. Call 925-322-1795 for your Consultation.
Famed Playboy (Owner) and Celebrity Hugh Hefner passed away on September 27th at the age of 91.
With an estimated net worth of $50 million at the time of his death, a young wife, multiple ex-wives and ex-girlfriends, and four children to boot, who will end up with Hugh Hefner’s fortune?
His last will and testament, along with any Trusts he created, have not been made public - but rumors are circulating about who will benefit:
According to reports an “ironclad” prenuptial agreement was signed prior to his third marriage to Crystal Harris, leaving her out of the will. But don't be too concerned for Crystal's welfare, Hef bought her a $4.9 million house in the Hollywood Hills just four months after their marriage. And TMZ reports the ultra luxe home is held in a trust Ms. Harris controls. There may have been additional money left for in Hef's trust as well. In life, Hefner was known as being generous, and it appears his generosity continues in death as well.
Playboy’s global brand is worth an estimated $110 million and Hefner owned 35%. He owned 100% of Playboy magazine, whose sales have declined over the years, but still reportedly supplied about $100,000 to his revenue stream.
The famous Playboy Mansion was previously owned by Playboy Enterprises, but sold last year for $100 million to Hef’s neighbor, Daren Metropoulos. Hefner was allowed to live there until his death, in what is known in Estate Planning as a Life Estate.
Hugh Hefner had four adult children. According to multiple sources, the children will inherit the bulk of his estate, along with the University of Southern California Film School and several charities. His daughter, Christie Hefner, was formerly CEO of the Playboy empire and his youngest son, Marston, is currently the Chief Creative Officer of Playboy Enterprises.
The Bottom Line
Preliminary information about Hefner's Estate (including Holly Madison's Will on the bed story) point to everything being pretty well organized. And unlike billionaire news magnate Sumner Redstone, it does not appear Hefner exhibited signs of dementia that led to accusations of financial elder abuse. Nor did Hef attempt to do what has started so many monstrous trust and estate litigations - give a huge chunk of money to a much younger wife or girlfriend. Think Anna Nicole Smith or Saint's owner Tom Benson.
Chapter Two continues the unhappy saga of the troubles of Tom Clancy’s estate. The main players in this drama are the two wives of Tom Clancy; his first wife, Wanda King, who was married to him for 30 years, and his second wife and widow, Alexandra Clancy, married to him for 14 years.
The drama revolves around the character of Jack Ryan, hero of Clancy’s famous novels and now a legal entity unto himself. The lawsuit filed by Alexandra Clancy challenges the relationship between the Clancy estate and Jack Ryan Enterprises Ltd. and Jack Ryan Limited Partnership. These two companies were created after Clancy’s death by the personal representative of his estate to handle the ongoing business of the Jack Ryan books.
The character Jack Ryan lived on after Tom Clancy’s death with posthumous works written in the same style as Clancy’s writings but authored by other people. And it is these books that have caused all the fuss, since Clancy’s first wife Wanda is due 40% of the profits.
The lawsuit calls into question the actions of J.W. Thompson Webb, the personal representative of Clancy’s estate and the author of the two businesses that were created to deal with the ongoing publishing of the Jack Ryan books. According to the Baltimore Sun Alexandra Clancy says Webb violated his fiduciary duties by favoring the two Jack Ryan companies and wants the judge to say that the Jack Ryan character belongs only to the Clancy estate. The big question is who owns the rights to Jack Ryan, because those rights are worth a lot of money.
So we ask ourselves - could Tom Clancy have foreseen the inevitable complications that Jack Ryan would cause and planned his estate accordingly? Can any of us see into the future and glean some idea of what will transpire after we depart? The job of your estate attorney is to be aware of the complications that are possible - and to prevent them before they happen.
For questions about Estate Planning and preventing a probate lawsuit contact our Walnut Creek Trust and Probate Law Firm at 925-322-1795 to set up a consultation.
What is a no-contest clause and why is it added to a will or trust?
In Latin it is known as an "in terrorem" clause, which means that the clause is inserted as a threat or warning to those beneficiaries of a will or trust who would seek to challenge the estate plan after death. If those beneficiaries wish to challenge the validity of a trust in court and do not have “probable cause” the threat they face is complete disinheritance.
Let’s give an example regarding a recent dramatic case in San Francisco. An article published in California Trusts and Estates Quarterly revealed that in a bid to challenge the Revocable Trust of Irene M. Lieberman, two of her children lost $10 million that they were due to inherit. The San Francisco County Superior Court ruled that they did not have probable cause to bring their lawsuit. Such a dramatic result is unusual. One would hope that an experienced trust attorney would steer his or her client away from pursuing a case without sufficient probable cause.
Now, the important operating term here is “probable cause”. Just what is probable cause? What is the legal definition? California Probate Code section 21311 (b) defines probable cause as “facts known to the contestant [that] would cause a reasonable person to believe that there is a reasonable likelihood that the requested relief will be granted after an opportunity for further investigation or discovery.”
In other words, beneficiaries who contest a trust in court with the belief that the facts known to them are legitimate and can show they are right can be said to have probable cause. If they prevail in the case and show the court that indeed the facts they have presented are valid, the no contest clause will not be activated. That being said, it is also possible for beneficiaries to lose their case in court but still be found to have probable cause so that the no-contest clause is not applicable.
In most cases, the court will first order the parties to mediation in hopes they can come to agreement amongst themselves (and their attorneys). I litigate a significant amount of trust matters, and I have never had a client be disinherited due to lack of probable cause (or any other reason). The other party may threaten this, but a competent and experienced trust litigation attorney can guide a beneficiary as to whether or not the threat of disinheritance has teeth.
Let’s give an example where a trust could be successfully challenged without triggering the no-contest clause. Suppose that a trust has been set up leaving assets equally to two children. One of the children is a caregiver for the elderly parent and persuades the parent (who has dementia) to change the trust, leaving only 25% to the other sibling and the other 75% to the caregiving sibling. Suppose also that child uses trust funds for personal expenses while the parent is still alive. In this scenario, the other sibling can bring a lawsuit challenging the trust upon the decedent’s passing, charging undue influence and financial elder abuse. Because the parent changed the trust when they lacked mental capacity, unfairly benefitting one child, most courts would agree probable cause exists.
There are other types of direct contests which if presented with proper factual and legal evidence can also show probable cause. Fraud, forgery, menace, or lack of a signature on a document are all examples.
There are two types of claims, however, that, in some cases, can trigger a no-contest clause.:
Creditor’s claims - If a beneficiary is owed money by the estate and pursues a claim for payment it may trigger the no-contest clause even though the claim for payment is legitimate. The language in the no-contest clause may be written in such a way to specify that bringing a claim will result in disinheritance. The bottom line? Consult with a Trust attorney before filing a creditor claim against a Trust.
Challenges to property ownership - In situations where there is community property between spouses there may arise an issue when it is not clear who owns the property in the estate, leading to a community property claim. In this case, it essential to have an experienced Trust and Estate attorney thoroughly review all estate planning documents.
As you can see, deciding whether or not to contest a trust (or trust amendment) that includes a no-contest clause must be done carefully with the advice of an attorney who specializes in trust and estate litigation. It’s also important for the attorney you choose to be very familiar with the judge in the county you will file your lawsuit. Each judge and his or her viewpoints on the law will affect the outcome of your case.
Likewise, care must be taken when executing estate planning documents that contain a no contest clause. There are many legal ramifications when it comes to wording a trust document correctly and many avenues to explore to ensure familial harmony.
Expert legal advice can spell the difference between success and disinheritance.
For questions about Trust Litigation or Contesting a Trust call our SF East Bay Trust Litigation Law Firm at 925-322-1795.
After nearly a year in litigation, former Brooklyn DA Ken Thompson's wife filed papers relinquishing all money and personal property left to her in her husband's estate. Just who is Ken Thompson, and what went wrong after his death last October?
Attorney Ken Thompson was Brooklyn's first African American District Attorney. Last October he passed away from cancer at the age of 50. He left behind a wife, two children, and a grieving mother. He was a renowned attorney just starting out in his political career when he was diagnosed with an aggressive form of cancer that took less than 6 months to kill him.
But the tragedy does not end there.
Just prior to Mr. Thompson's passing, he drafted Estate Planning documents that were allegedly in direct conflict with previous estate planning documents, drafted in 2008. The new documents cut out his mother and siblings and left everything to his wife.
--Lesson number one from your trust attorney: Do NOT encourage death bed estate planning that unduly benefits one person over another - especially when that estate planning directly contradicts a prior will or trust. This is an almost sure way to end up in court, paying out a hefty chunk of your inheritance to attorneys. --
Upon realizing what had happened, Thompson's mother immediately sued her son's wife, accusing her of "coercing" Thompson to sign a "deathbed will" that left the wife his entire estate.
Thompson’s mother Clara, a former NYPD police officer, alleged that her daughter in law Lu-Shawn destroyed an earlier will that she believed left large bequests to multiple family members, including Thompson's mother. Clara also accused Lu-Shawn of being a "spend-thrift" and leaving several million dollars of assets out of the probate filing.
Mr. Thompson had apparently amassed large property holdings, not to mention valuable personal property and bank accounts during his career as a prestigious trial attorney. His wife's recent "relinquishment" of rights does not include any property rights.
Ken Thompson's family has no doubt endured severe emotional stress and heartbreak over his death and the ensuing estate litigation. If there's anything we can take from this story it's this: avoid death bed estate planning, especially when it comes to changing a previous will or trust.
Does the word “estate” in estate planning make you turn a deaf ear to the whole concept of financial planning? Maybe you feel like “estate” planning doesn’t apply to you because your home doesn’t look like an estate, and your bank account is rather ordinary. But if you look at it that way, you may just be using the wrong definition of the word "estate." Yes, that's right, Webster has a second (& more useful) definition of estate:
"All the money and property owned by a particular person, especially at death."
"An extensive area of land in the country, usually with a large house..."
So, with that in mind, take a second look, because estate planning could be more aptly called “planning for the future of your loved ones”. Right now you can control how your assets are managed yourself. However, if you aren’t around anymore wouldn’t you want to leave some guidelines to tell people what to do? These guidelines can help assure that your wishes are carried out and that your family is protected. Having guidelines in place in the form of an estate plan can also help in avoiding family conflicts.
You also want to have guidelines in place in case you become incapacitated or incapable of expressing what you want in terms of medical care. An advance directive that includes a living will and a medical power of attorney can spell out who will make the decisions about your care if you are unable to communicate your wishes. A financial power of attorney enables the person of your choosing to direct your investments when you cannot.
If you have considerable assets you may want to involve a tax professional and a financial professional along with your estate planning attorney to help minimize tax liability while maximizing investment potential. All three professionals can work side by side with you to create a seamless plan that meets your goals.
Finally, you may want to include a more personal side to your estate plan. Alongside the legal documents you can draft a letter or letters conveying the love you feel for the special people in your life. You can leave a video for your loved ones or a scrapbook with meaningful pictures. This can become part of your legacy and a comfort to your family. That said, start small. Contact an attorney and have a meeting. Then you can go from there.
For more information about putting together an Estate Plan, contact our East Bay Estate Planning Firm at 925-322-1795.
On a recent trip to visit family friends, I had the opportunity to hear the story of a dear friend's older sister who had recently passed away. My friend was kind enough to allow me to share that story here. As I do not share the personal stories of my clients, I felt this was a good opportunity to illustrate one way that Conservatorships can be used to protect individuals who can no longer care for themselves. Let's call my friend Sally and her sister Anne.
Sally's sister Anne had long been suffering from severe mental health issues. Over time, Anne also developed early onset dementia. Eventually, she became so ill that she was unable to take care of herself. Anne's husband also found himself unable to deal with the extreme stress her care required. As such, Sally told me that "the state" had to take over Anne's care. The "state" i.e. the county, will only get involved with the most dire situations, for which no alternative can be found.
What does "the state taking over her sister's care" mean?
What Sally meant was that the County, specifically the Public Guardians Office - assumed the role of Conservator for her sister. While the "conservatee" (Anne) resided in Colorado, the law there is very similar to California. In both Colorado and California, the office of the Public Guardian is a county agency that provides conservatorship services when "there is no one else who is qualified and willing to act." The Public Guardians office is generally part of the county's Health Services Department.
When there is no one who is willing or able to take on the role of guardian or "conservator" as it is called in California, a professional Conservator (typically a licensed fiduciary) or the Public Guardian can step in to assist.
When is a Professional Conservator or Public Guardian Necessary?
In my friend's situation, her sister had a combination of mental illness and early onset dementia. The bottom line was that Anne was no longer capable of caring for herself, and lacked the mental capacity to make health or financial decisions. This meant that either an agent under a Power of Attorney needed to step in, or a Conservatorship was necessary.
My friend's sister was married but had no children or other family willing to look after her. While her husband tried to care for her, he was unable to cope with her increasingly dire situation and eventually had his own breakdown. In situations where there is no one else and little or no funds for a professional, the Public Guardian will step in to manage a person's care. If there are funds available, generally a professional Conservator (licensed fiduciary) will be hired.
Conservatorships are complicated legal proceedings that often involve significant time and energy on behalf of the Conservator. They also place substantial legal liability upon the Conservator. It is thus understandable why many families turn to professional fiduciaries or their county for assistance.
Conservatorships can save lives. In my friend's case, the Public Guardian did not step in soon enough, and her sister died shortly after they took over her care. If you believe someone you know or love is no longer able to care for themselves or their finances, a Conservatorship may be the most effective way to help them.
For questions about Conservatorships, or to schedule a consultation, call my Walnut Creek Estate and Elder Law Firm at 925-322-1795.
If your spouse passed away in California without a Trust, you may think you'll need to go through probate. However, in many cases, the surviving spouse does not need to probate the estate of their loved one to gain access to his or her assets. Instead, you may only need to file a Spousal Property Petition. A Spousal Property Petition can save a lot of time and money. Here's how to determine if you need to go to Court, and whether you'll need a Probate or simply a Spousal Property Petition:
1. Do you Need to go to Court to Transfer your Spouse's Assets?
If your spouse passed away in California and had more than $150,000 of assets titled in his or her name, you’ll most likely need to go to court in order to gain access to the asset(s). In other words, he or she died without a trust, and with assets held solely in his or her name. Accounts that are held jointly or with beneficiary listings would not count toward this $150,000 minimum.
Even if the spouse had a will, the surviving spouse will still need to go to court. If the spouse had no will, that person is said to have died "intestate" and his or her assets will pass according to the laws of intestate succession. If the assets are all community property, they will generally all go to the spouse.
2. If you need to go to Court, do you need to a Probate or a Spousal Property Petition?
Let’s first define Probate and Spousal Property Petition:
Probate: The court overseen process of transferring assets from a deceased person to his or her heirs or beneficiaries.
Spousal Property Petition: A petition submitted to the probate court of the county where the spouse or domestic partner died that essentially requests authorization to transfer assets from the deceased spouse to the living spouse (or legal domestic partner). There are some other instances in which a spousal property petition may be used.
1. If the spouse is the only beneficiary to the estate/assets:
If the spouse is the only beneficiary to the estate, you will most likely only need a spousal property petition. There are some special circumstances in which a full probate may be required, so consult an attorney who specializes in Probate for your specific situation.
A spousal property petition can only be used to transfer assets that the living spouse alone is entitled to. The living spouse may be entitled to the assets through a will or through the laws of intestate succession. The most common example of this scenario is when a spouse passes away with assets in his or her name and those assets are not separate property assets. In general, this means that all the monies held by the deceased spouse were earned during the marriage and any property held by the deceased spouse was paid for using community property funds. The estate of a person who passes away with significant separate property assets (inheritance, money earned prior to marriage, property purchased prior to marriage etc) will most likely need to go through probate. Always consult a legal professional if you have questions about the assets left by your spouse.
2. If there are other beneficiaries under the deceased spouse’s will:
If the spouse created a will which includes other beneficiaries, a probate is most likely necessary for the assets being transferred to those beneficiaries.
3. If there is no Will:
If the spouse passed away without creating a will or trust, the property will pass in accordance with laws which determine who will inherit a decedent’s property. This is called intestate succession. Any shared property (community property) between spouses will be transferred to the surviving spouse through a spousal property petition. But if the deceased spouse owned property in their own name as separate property, and the or she passed away without a will, it may be necessary to probate the separate property assets. In a situation such as this, both a spousal property petition and a probate would be necessary.
4. If there are potential legal problems with the estate:
If there is a potential litigation against the estate, a will contest is likely, or problems with creditors, the surviving spouse may elect to go through a probate process in lieu of a spousal property petition. This is because the probate process is better equipped to handle more complicated legal issues, and the surviving spouse is less likely to face liability or lawsuits that may arise should a probate not occur.
How a Spousal Property Petition Works:
First, the surviving spouse (or their attorney) files a spousal property petition with the Superior Court in the county where the decedent lived. The petition lists the facts of the case and the community property owned by the decedent. Assets that are owned in joint tenancy will not be included on the petition.
The spousal property petition requests that the court confirm that the surviving spouse is entitled to their 50% share of the community property, pursuant to California law. The petition also asks the court to grant the decedent’s 50% share of the community property to the surviving spouse. Essentially, the spousal property petition asks the court to give 100% of the community property to the surviving spouse.
After the petition is filed, the court will set a hearing date. Notice of the hearing is sent to everyone mentioned in the will (if one exists) and to all of the decedent’s heirs. In some instances, the court may pre-approve the Spousal Property Petition and thus avoid the need for the hearing.
Once the order is approved and signed by the judge, it needs to be recorded with the County Recorder in every county where real property is located. This will update the county records to list the surviving spouse as the new owner of the property. Copies of the order can also be given to financial institutions (such as banks) and brokerages to show proof of ownership over the decedent’s assets.
What happens if you do not file a spousal property petition?
If a surviving spouse does not file the petition, the deceased spouse’s name will remain on the assets and this may lead to complicated title issues which could preclude sales or transfers of the assets. Real estate, for example, cannot be sold or refinanced until the title is cleared.
Do you need an Attorney to file a Spousal Property Petition?
It's always best to consult an attorney. Working with an attorney who specializes in probate law helps to protect the petitioner from liability. An attorney can also provide guidance, help avoid potential litigation, and ensure that the process goes as smoothly and quickly as possible.
Spousal Property Petitions can be complicated. Always consult an attorney regarding your specific situation.
If you have questions about Probate, Spousal Property Petitions, or 850 Petitions, contact our Probate Law Office in Walnut Creek, CA at 925-322-1795 to set an appointment.
When a person dies who does not have a will the probate court must manage his or her estate. Without making a will the person is said to have died “intestate”. Simply put, the court, according to the laws of each particular state, decides who shall receive outright your personal belongings and money.
But there are some heirs who do not necessarily benefit from receiving a direct line to significant funds. These may include:
Heirs with addiction issues - Those persons with alcohol or drug dependency issues can go through large amounts of money in a short time, possibly contributing to their further downfall.
Heirs that are known credit risks - People with poor credit ratings or who may have filed for bankruptcy may not be fiscally responsible. Big spenders without financial discipline can also go through an entire inheritance due to reckless spending.
Disabled spouses - As persons with disabilities may qualify for public benefits at some point, such as Medicaid or Social Security disability, their eligibility for such programs may be jeopardized by even a small inheritance.
Disabled children and minors - Minors cannot inherit from an estate until they are of legal age. Any money left to a minor must be paid to the clerk of court without any guidelines in place as to how it should be spent to assist the minor. And minors with special needs can be put at the same disadvantage as spouses with disabilities; that is, minors with special needs may be eligible for government benefits and any inheritance may adversely affect their eligibility.
If any of your family members are in one of these categories special provisions can be set up through a well-drafted trust based on the circumstances that will protect their inheritance. A trust permits its creator, or ‘trustor’, to control how the money is distributed by setting forth certain criteria for the beneficiaries to receive money.
For more information about the estate planning process, or how a revocable trust works, contact our East Bay Estate Planning Law Firm at 925-322-1795.
For those of you who are fans - or at least avid listeners to the hit podcast "S-Town," you may be left with a few questions:
- What happened to Mary Grace?
- Where is the gold??
- Did Cousin Rita have something to gain?
- What happened to all those dogs?
I can't answer these questions definitively, but a recent examination of Mary Grace McLemore's Conservatorship/Guardianship file from the Bibb County Probate Court sheds light on a few of them.
Now, first I'll say that as an attorney who specializes in Conservatorships, as soon as John mention Mary Grace had dementia, I immediately wondered if he was her Conservator. For clarification, a "conservatorship" is equivalent to a guardianship for an adult. Conservatorships allow one person - the Conservator -to manage medical and financial affairs for another, usually a person with dementia or related illness. All John's trips to visit his lawyer - one B. Boozer Downs, Jr. - led me to believe a Conservatorship might be in place.
Despite my suppositions, a review of Mary Grace's file revealed that John did not have Conservatorship over Mary Grace, but was her "agent" under a power of attorney. It appears that Mary Grace signed the power of attorney very close to the time she was diagnosed with dementia, which legally can be very risky. However, with no other close family besides John, a lawsuit would have seemed unlikely.
A conservatorship proceeding was not initiated until after John's suicide, when Mary Grace's second cousin, Rita Lawrence, petitioned the court to become Conservator of both Mary Grace's "person," and her "estate." A Conservatorship of the Person would allow Rita to manage health and medical decisions for Mary Grace, while Conservatorship of the Estate would giv her control over Mary Grace's financial affairs.
Now, let's start with perhaps the biggest curiosity of S-Town: What happened to the Gold?
Apologies if I got you too excited - I too was hoping Mary Grace's Conservatorship file, which contains a detailed accounting of all her expenses and income, would show signs of a gold discovery. Alas, it was not so. Even a hint of mysterious funds was not to be found. Instead, Rita was lending money to Mary Grace (or rather her conservatorship bank account) so that she could pay for expenses incurred prior to the sale of her property.
If Mary Grace didn't have any gold, what assets did she have?
Other than the property Mary Grace and John lived on - a vast 123 acres of mostly forested land, Mary Grace had a paltry $98 in her bank account when John passed away. According to the Conservatorship accounting, Mary Grace did have a monthly income of about $2,000 from Social Security and VA benefits.
On August 12, 2016 Burt Holdings (ironically owned by rumored-but-not murderer Kaleb's father) bought Mary Grace's property for $280,000. The funds from the property sale would have gone directly to Mary Grace's conservatorship account, to be used for her care. If anything is left over, it would be inherited by her heirs.
What happened to Mary Grace after Rita became Conservator?
When listening to the show, I concluded that Mary Grace had gone to Florida to live with Rita (or Reta). But that was not the case, at least for the following year after John's death. From shortly after John's suicide to the end of the Conservatorship accounting in July 2016, Mary Grace still resided in Alabama, just 7 miles away from her home with John. She was apparently sent to live with a full time caregiver.
This fact would certainly quell any fears Tyler Goodson had about Mary Grace being taken away. It's unclear exactly who the caregiver is in relation to the family, or how she ended up being the one to care for Mary Grace, but it seems to me like the small town equivalent of placing a Conservatee in a residential living facility.
Is Mary Grace in a better situation than she was with John?
It is unclear as to whether or not Mary Grace is happier and receiving superior care. Rita reports to the court that Mary Grace is "thriving" in her new environment, and I certainly hope she is. It's also unclear if Mary Grace was being properly cared for by John. According to the Conservatorship documents, the Woodstock property had to be sprayed for fleas on at least two different occasions after John's death. This is a bad sign in general, but we of course have to take into account the many dogs that lived with them. Which brings us to the question...
What happened to all those Dogs?
Those of you who listened to the podcast will remember that John said he had quite a few dogs. According to Mary Grace's file, she paid $60 in August of 2015 to remove 10 dogs from the property. Presumably someone took care of the dogs after John died - was it Tyler? Sadly, many of those dogs probably did not survive the year.
Did Cousin Rita have something to gain?
S-Town inspired a bit of a conspiracy around Rita's presence in Mary Grace's life. In fact, many conservatorship cases can turn in to hotly contested matters where one party is in fact out to gain something for themselves. After a review of her file, however, I have to say that in this particular matter, that does not appear to be the case. In fact, due to the many criminal counts Tyler is being tried for, it appears that Tyler, and John by default, are the ones guilty of wreaking havoc in the Conservatorship case. Why John? Because he killed himself in what was likely a traumatizing event for Tyler - and furthermore neglected to do a will leaving Tyler what he'd supposedly promised to him. Had John done a will, Tyler likely would have gotten more closure and been able to move forward with his life.
Now, that's not to say that Rita did everything for Mary Grace out of sheer love and kindness. She did get paid for her time. This is normal for Conservators, however. If the Conservator is a child of the Conservatee, he or she may not seek payment, but other relatives typically do. In Bibb County the rate is $18/hr, while here in Northern California the rate ranges between $25-$40/hr, depending on the county. Still, assuming Rita never found any gold, she certainly did not become rich by stepping in to help Mary Grace. Moreover, Rita appears to be the only relatively young family member Mary Grace had. Two other relatives live in Alabama - cousins Elna and Kay. They appear to be Mary Grace's direct heirs, and were asked to sign off on the sale of her property. Elna and Kay are likely quite old themselves, and therefore not in a position to care for Mary Grace. So Rita was the best choice.
So, now you know what happened to Mary Grace after John's death, and perhaps have a little more insight into the story of John McLemore and S-Town, also commonly called Woodstock, Alabama.
For more information about Conservatorship, contact my Walnut Creek Elder Law Office at 925-322-1795.
The trust battle between the Buss siblings over control of the L.A. Lakers has ended. Jeannie Buss and her brothers, Jim and Johnny, reached with an agreement for Jeannie to remain as controlling owner for as long as the family owns the famed basketball team.
On February 21 Jeannie Buss, the L.A. Lakers president and controlling owner, abruptly fired her brother Jim and hired basketball legend Magic Johnson to replace him as the new president of basketball operations.
Three days later Jeannie's two brothers called for a director’s meeting in what appeared to be a retaliatory move. Jim and Johnny Buss proposed that the board be composed of four directors, leaving their sister out. According to the family trust, Jeannie Buss must be a director to retain her role as controlling owner of the Lakers. The family has a 66% stake in the ownership of the team and four separate trusts mandate that Jeannie Buss be the controlling owner. She has been in this role since her father, Jerry Buss, died in 2013.
A month long fight in probate court between Jeannie and her brothers ensued, which included asking the court for a temporary restraining order to block the director's meeting. The motion for the restraining order included a four page declaration in which Jeannie maintained that her brother Jim was “completely unfit” to oversee basketball operations for the Lakers. Ms. Buss also stated in the court declaration that “despite the fact that I gave my brother Jim ample time to prove himself in his role.... I could not allow the damage being done to the franchise over the past few years to continue.”
Jeannie’s sister Janie, according to a source familiar with the drama, has taken the place of Jim Buss, who resigned as co-trustee as one of the requirements by his sister Jeanie to resolve the dispute. Her attorney, Adam Streisand, told the Los Angeles Times “Do not underestimate Jeanie Buss. There is not going to be a palace coup. Not now. Not ever.”
The brothers signed an agreement to waive the annual shareholders meeting, naming Jeannie Buss and four others the directors. The attempt to take over the board resulted in Jim Buss losing his position as a co-trustee for the four trusts.
“The trust instrument seems crystal clear,’ said Patrick Goodman, who teaches probate law at UCLA and reviewed the documents contained in the case. “Jerry Buss intended Jeanie and Jeanie only to be the controlling owner.”
Trial is set in Los Angeles Probate Court on May 15. The trial will most likely be dropped, as the family seems to have resolved their dispute. Despite the best estate and business planning, legal action is always possible. Nevertheless, making one's intent crystal clear in estate planning documents means that litigations are typically cut short. In my experience, such matters arise simply out of hurt pride or feelings, or unresolved emotions related to the death of a parent.
For questions about Trusts, Trust or Probate Litigation, or Prudent estate planning, call my Walnut Creek Trust and Estate Law Firm at 925-322-1795.
When patients are diagnosed with a chronic illness such as Alzheimer’s or dementia, they often feel a sense of hopelessness as their natural confidence is replaced with a feeling of losing control over their lives. They may feel helpless and alone, victims of their disease, and depression can set in.
For individuals and families dealing with the diagnosis that threatens one’s mental capacity, it can be therapeutic and calming to lay out a plan.
What to consider when planning for Alzheimer’s, Dementia, Parkinson’s, and similar conditions:
1. Does the person who has been diagnosed have a legally valid, up to date Power of Attorney?
If not, consult an attorney who specializes in Elder Law. If the diagnosis is made early on, it may still be possible to execute a Power of Attorney. When forms of dementia have progressed such that they significantly impair the mental capacity of an individual, a Conservatorship may be necessary.
2. Who will provide Care and how will it be paid for?
Families must consider the serious cost of care going forward, as well as the degree to which care may be needed. If 24-hr care becomes necessary, families must consider the option of an in-home nursing service versus a skilled nursing facility.
3. Is Medi-Cal planning for long term skilled nursing something that might work for your family?
Consult an Elder Law attorney to determine your options for long term skilled nursing facilities that are paid for by Medi-Cal. In certain cases, a special needs trust can be set up for the individual in need of care, which will allow them to qualify for Medi-Cal long term care coverage. If an individual does qualify for Medi-Cal long term care in a skilled nursing facility, families need to be aware that the individual will be limited to facilities covered by Medi-Cal. When an individual in need of long term care has a home or other significant asset(s), many families will choose not use Medi-Cal facilities.
4. Is everyone in the family aware of the diagnosis and its implications?
Given the emotional nature of dealing with a disease that seriously impacts mental capacity, children and other family members need to be kept informed each step of the way. Lack of communication among family members can lead to legal action - whether it is over a Power of Attorney, Conservator, Trust, or other aspect of the diagnosed individual’s life.
5. Has everyone in the family had a chance to weigh in on the plan for the future?
Lack of communication among family members, as well as family members not feeling heard - can lead to legal action. I frequently see clients who want to initiate lawsuits simply because they are not receiving information. When an individual has a diagnosis of dementia or similar disease, legal actions can relate to Power of Attorney documents, Conservatorship issues, or Living Trust matters.
6. Have you consulted an Attorney who specializes in Elder Law, Estate Planning, and Conservatorships?
It’s always best to consult an attorney as early as possible to determine what legal steps might be needed to ensure the financial and medical affairs of the person who has been diagnosed are in order.
It is particularly important not to wait for an emergency but to reach out to family, friends, and one’s community as soon as possible. Those who are diagnosed early can take their power back by expressing their wishes and planning for the future.
A supportive, loving group around the suffering family member, coupled with a clear plan going forward are the pillars of long term care planning.
For more information about Conservatorships or Elder Law, contact my downtown Walnut Creek Elder Law Firm at 925-322-1795 for a consultation.
Reports indicate that the Administrator of Bobbi Kristina Brown's massive estate abruptly quit amidst the heated family drama since Brown's death. Bobbi Kristina Brown, daughter of Whitney Houston and Bobby Brown, died after being in a coma for several months after a presumed drug overdose nearly two years ago. Her estate, and the ensuing legal drama surrounding it, however, have continued to live on.
Atlanta attorney Bedelia Hargrove, now the former Administrator, has been involved with Brown's estate since before her death in June 2015. Ms. Hargrove was originally appointed as Conservator of the Estate - a role granted by the court in cases where a person is not capable of managing his or her own finances.
Reports indicate that the Hargrove quit due to tension and "family infighting" between Whitney's mother, Cissy Houston, sister-in-law Pat Houston, and Krissy's father, Bobby Brown. There appear to have also been disagreements related to bills owed by the estate, with Hargrove claiming the family refused to pay. Houston's family, on the other hand, claimed Hargrove would not show receipts to account for her own large fees, and also wasted estate funds by pursuing the wrongful death suit against Nick Gordon.
Bobbi Kristina's tragic death at the age of 21, combined with her wealth and celebrity status have catapulted attorney Belinda Hargrove into the mainstream newscycle. But Hargrove's role - i.e. the role of a non-family neutral third party in administering an estate - is in fact, quite common in probate cases. But what exactly was Ms. Hargrove's role? Let's take a look.
News articles refer to Hargrove as "Conservator of the Estate," "Administrator of the Estate," and "Trustee". It's possible that she was, in fact, all three.
- Conservator of the Estate. A "conservator" is essentially like a court appointed agent under a power of attorney. Conservator of the Estate refers specifically to someone who manages the finances on behalf of another person, called the Conservatee. When Bobbi Kristina was in a coma, prior to her death, the court appointed Ms. Hargrove to manage her finances. If someone becomes incapacitated (dementia or serious accident/injury) and they had previously executed a valid Durable Power of Attorney, the need for a conversatorship may be obviated.
- Administrator of the Estate. An administrator is similar to the "executor" of a will. However, when someone dies without a will, as Bobby Kristina likely did, the court will appoint someone to administer the decedent's estate. This essentially means taking responsibility for the assets and ensuring they are distributed to the appropriate beneficiaries. For someone who has a Trust, an Administrator of the Estate would only be appointed if that person had assets that were not part of the trust.
- Trustee of a Trust. Whitney Houston had reportedly set up a trust with Bobbi Kristina as the sole beneficiary. While it is unclear who the actual trust document named as Trustee, Ms. Hargrove appears to have been the acting Trustee until several days ago. The Trustee is responsible for managing all trust assets and ensuring they are distributed to the appropriate beneficiaries.
In most cases I handle that involve a third party acting as Conservator, Trustee, or Administrator, that person is a professional fiduciary as opposed to an attorney. This can be of significant cost savings, because fiduciaries typically have an hourly rate that is much less than that of an attorney. When a fiduciary is appointed, they will also have an attorney to handle the legal aspects of his or role, but the attorney would not handle the day to day management activities. In certain Trust matters, fees are paid on a percentage basis, and thus fees would be the same for a fiduciary and an attorney. Conservatorship matters are usually paid on an hourly fee schedule, and thus significant cost savings can be attained by using a fiduciary rather than an attorney.
Court documents indicate that a temporary successor has been appointed to take over the management of Ms. Brown's estate. It is my hope that the family and their respective attorneys can resolve estate matters as quickly as possible, and avoid further heartache after the loss of young Bobby Kristina.
For questions about Conservatorships, professional Trustees and Administrators, Probate, or Trust litigation, contact my SF East Bay Trust and Estate Law Firm at 925-322-1795 for a consultation.
For most families, setting up a trust to hold one's property or bank accounts is a prudent step. But when your assets are in the hundreds of millions, setting up a trust (or trusts) is seldom simply an item on your to-do list - it's a must.
As many of you already know, Fox News owner and media mogul Rupert Murdoch is reportedly very close with the Trump family. So close in fact, that when Murdoch was setting up a trust for his two young daughters, his then wife Wendi asked Ivanka Trump to be one of five trustees. As a trustee, Ivanka's role would have been to oversee the prudent management of trust assets, and the appropriate distribution of the trust to its beneficiaries (the two girls). It makes sense that the 85 year-old Murdoch might want to name Trustees who are relatively young and will thus be able to oversee the administration of a trust for his daughters, Grace (15) and Chloe (13), during their lifetimes.
A spokesperson for Ivanka reported that Ms. Trump stepped down as Trustee on December 28th of last year. While Ivanka may no longer be playing the role of Trustee, the story brings up a couple of interesting points about prudent estate planning.
1. While you may not be leaving behind hundreds of millions of dollars, an impartial trustee may still be a great option.
Asking Ivanka Trump to be a trustee is similar to bringing in a neutral third party to manage one's trust. For most families, this would be a professional fiduciary, as opposed to the daughter of a billionaire friend. Bringing in outside parties, who have no personal interest in a trust can make sense. Rupert Murdoch could have simply chosen his older sons, who happen to run several of his businesses, as trustees for his daughters' trust. Or he could have chosen his former wife, Wendi Deng. The fact that he named someone outside the family, who likely has no personal biases toward the daughters, is likely due to the savvy advice of his lawyers.
The bottom line: appointing a neutral third party as trustee or successor trustee is a great way to avoid future trust litigation that may arise because of family relationships or conflicts of interest.
2. Choose Trustees or Successor Trustees who are Younger
The duty of a trustee, or board of trustees in the Murdochs case, is to oversee the management and distribution of a trust's assets. People with older children who are doing a trust for the first time will likely want everything distributed in one lump sum. This means that the trustee (or successor trustee) does not need to be substantially younger than them. As long as named trustees are somewhat younger than the settlor (person setting up the trust), it is likely they will be alive and able to fulfill their role. However, if one's beneficiaries are young, and the settlor wishes for trust assets to be distributed in stages or managed on behalf of the beneficiaries, he or she will need to choose trustees that are young enough to fulfill that role. If one is looking to a neutral third party, this may be accomplished by choosing a trusted fiduciary group.
You probably will not need a board of trustees to manage your childrens' trust. However, it's always prudent to think through potential future conflicts when it comes to choosing trustees. Remember, it is seldom prudent estate planning that results in families being embroiled in trust/estate litigation lawsuits. Bottom line: you can never plan ahead too well.
As for Ivanka and the future of the Murdoch family fortune, we'll just have to keep our eyes peeled and our ears open for future developments.
For questions about Estate Planning, Trust Litigation, or the role of a Trustee, contact my East Bay Trust and Estate Law Firm at 925-322-1795 for a consultation.
Michael Jackson's Mother claims Elder Abuse: What are her legal options?
Michael Jackson's 86 year old mother Katherine filed legal documents Wednesday claiming her former driver and nephew in law, Trent Jackson, had subjected her to years of elder abuse. She requested a restraining order, which was temporarily granted by the court, and will likely be permanently approved.
The caregiver to Michael Jackson's three children, Prince, Paris and Blanket, accused her nephew of both financial and emotional elder abuse, including isolation from other family members.
Elder abuse can take on a variety of different forms. The most prevalent forms I see in my practice are financial elder abuse and emotional elder abuse - which often includes isolation from family and friends. Katherine accuses Trent Jackson of both. Before we get in to the legal ways to combat elder abuse, let's first address what elder abuse looks like, using Ms. Jackson's case an example.
What forms can Elder Abuse take?
Financial Elder Abuse
Infiltrating Business and Personal Affairs. The lawsuit accuses Trent Jackson of "infiltrating" all aspects of Ms. Jackson's affairs, even referring to himself as her "house manager." When a family member or friend becomes intimately involved in the affairs of a much older individual, their ability to manipulate or "unduly" influence is often greater. This is because older people are often more vulnerable mentally, physically, and emotionally.
Accessing Bank Accounts. Katherine's lawsuit accuses her nephew of accessing her bank accounts without permission. According to the lawsuit, her nephew also used her credit cards without approval. In most cases of elder abuse, the alleged abuser does not outright "steal" funds from the elder. Instead, they apply pressure or manipulate the older individual to directly hand over funds or property. In Ms. Jackson's case, it is likely that Trent was given some permission to use bank or credit card accounts, and simply used the privilege beyond the scope of Ms. Jackson's intention.
Emotional Elder Abuse
Isolation. The lawsuit claims that Katherine's nephew had begun to "regulate Mrs. Jackson’s interactions with her children — screening phone calls, not relaying messages, not allowing privacy during visits or phone calls." Isolation is a hallmark sign of elder abuse.
Manipulation. Manipulation is most often inherent in both financial and emotional elder abuse. In Ms. Jackson's case, the legal docs claim Trent manipulated her in several different ways. First, was his manipulative behavior regarding financial affairs. This is the most common type of manipulation I see in cases of elder abuse. Trent even went so far as to convince Katherine not to press charges against him. The lawsuit claims Trent "preyed upon her known kindness" by "crying and begging her not to report him," even when Adult Protective Services or the Police had already arrived.
Fear and Confusion. Katherine claims that Trent subjected her to significant mental abuse that left her “in a constant state of fear and confusion.” In the lawsuit she calls Trent an "abusive con-man."
What are your Legal Options to combat Elder Abuse in California?
Legal options for Elder Abuse depend on whether the victim is living or deceased.
If the Victim is Living, there are 3 legal ways to combat Elder Abuse in the Civil and Probate Courts.
If the Victim is deceased, a Financial Elder Abuse lawsuit is the best legal route for pursuing Justice and financial retribution.
1. Restraining Order
Katherine Jackson chose the route of the Restraining Order. This is the most direct way to remove an unwanted or abusive person from an elder's life. A restraining order is often employed when the elder knows they are being abused and wants to cut all ties with the abuser. In many cases, the alleged or suspected abuser is a close family member, and it is not ideal for them to be cut out completely. It is also common that the victim of abuse has a mental impairment such as Alzheimer's or dementia and does not fully comprehend his or her surroundings. In such instances, a Conservatorship is the best legal way to combat elder abuse and protect the elder.
If financial, emotional, or physical elder abuse of an elder with dementia or other serious cognitive impairment is occurring (or suspected), a Conservatorship may be necessary. A conservatorship is when the court grants a person legal authority over the medical and financial decisions of another person. This allows the person named as conservator to take action to protect either the finances or the health (or both) of the elder (conservatee). A Conservatorship is an expensive and time consuming endeavor which is generally used only when no other options are available.
3. Elder Abuse Lawsuit
Elder abuse lawsuits can be filed in the probate court if the alleged victim is living or deceased. Most elder abuse lawsuits within the probate courts are financial elder abuse cases where one party is seeking financial retribution for crimes or fraud committed in the past. An elder abuse claim may accompany a Conservatorship, but in many cases financial elder abuse lawsuits are filed after the alleged victim has passed. Often this is because the abuses are not discovered until later. The most common type of financial elder abuse claim I see is when an individual changes his/her trust or will late in life, either after or around a diagnosis of dementia (or similar cognitive impairment) and at the behest of a close family member or caregiver. However, this is by no means the only form that elder abuse takes.
The purpose of the elder abuse lawsuit is to seek financial retribution. In combination with a Conservatorship, financial justice and protection can both be sought through the probate court system.
In Katherine Jackson's case, she will likely not pursue an Elder Abuse lawsuit. Most elderly persons in her situation seek to remove the person from their lives and reduce any further stress. It is unlikely that her nephew has any money of his own, and therefore an elder abuse lawsuit would not significantly benefit Ms. Jackson, and would result in more stress and attorney's fees.
For questions about Elder Abuse or Conservatorships, contact my SF East Bay Elder Law Firm at 925-322-1795 for a consultation.
After years of pressure from patient advocate groups, a recent change in Medicare law will now allow primary care doctors to be reimbursed for Alzheimer’s testing, resulting in quicker diagnoses for elderly patients. Prior to this new rule physicians did not regularly test for dementia and patients often went undiagnosed and untreated until their lives became unmanageable or a crisis occurred.
The testing for Alzheimer’s disease is a multi step process, including brain imaging, blood tests, comprehensive physical and neurological exams, and the patient’s full medical history. Now physicians can bill Medicare for all of these services.
But this is only the first step. Once a diagnosis is made, care planning is a critical next step for Alzheimer’s patients. According to Robert Egge, Alzheimer’s Association Chief Public Policy Officer, “Proper care planning results in fewer hospitalizations, fewer emergency room visits and better management of medication -- all of which improves the quality of life for both patients and caregivers, and helps manage overall care costs.” Physicians are now able to bill for their services in providing the family and patient available treatment and programs.
This is a critical step forward for Alzheimer's and dementia patients, especially because as many as 85% have other chronic conditions, according to the Alzheimer’s Association. The cost of caring for those with Alzheimer’s disease and other forms of dementia was estimated to total $236 billion dollars in 2016.
A diagnosis of Alzheimer’s affects the entire family. An early diagnosis of the disease, combined with access to care planning services leads to better outcomes for patients and their families.
The new law does not make any changes to the coverage provided by Medicare for residential living facilities. Some counties in California have their own programs and may be able to assist those in need, but Medicare continues to only cover skilled nursing needs.
Alzheimer's and similar diseases can also present a host of legal complications for families. If estate planning documents such as the Advance Healthcare Directive and Power of Attorney have not been executed prior to the diagnosis, a Conservatorship may be necessary.
Planning ahead for legal and financial matters, and regular checkups or screenings are the best tools families have to manage Alzheimers.
For more information about Estate Planning or Conservatorships, contact our Walnut Creek Elder Law Office at 925-322-1795 for a consultation.
When a parent dies who has had the forethought to establish a trust, the probate process can be avoided, which can be time-consuming and costly.
Now, let’s assume that the parent/trustee has real property in California and has named a successor trustee whose job it is to ensure that the property is passed on to the parent’s heirs. How is this done?
The following documents must be submitted to the recorder’s office of the county the property is located in:
A notarized Affidavit of Death of Trustee
The successor trustee must affirm that the parent / trustee has died and that the successor trustee named in the parent’s trust is the new trustee. The affidavit must also state that the deceased parent / trustee owned the real property. An original certificate of death must be submitted in support of the affidavit.
- A New Deed
When the affidavit is filed and recorded with the county recorder, the successor trustee can sell the property or transfer ownership to the decedent’s children. If the property is going to be kept by the family, a new deed transferring ownership to the beneficiaries named in the trust is necessary. This is typically accomplished by executing a “Grant Deed.” The new deed must also be notarized.
- An Appraisal
When the above documents are filed, the successor trustee can transfer ownership from the trust to the decedent’s children or sell it. Any change in ownership results in the property tax assessor reevaluating the property tax base to reflect current fair market value.
In other words, a new appraisal of the property contained in the trust must be done at the time of death, as transfers of real property due to death receive a “step- up” in basis equal to the fair market value upon the date of death.
A Reassessment Exclusion Form
Fortunately, in California there is a tax exemption when the transfer of real property is from parent to child. In order to claim it, the above document must be submitted. The successor trustee can also reduce capital gains tax on the property if it is sold.
Transferring ownership of real property (a home, building, or land) out of a trust is part of the formal legal process of “administering a trust.” It is generally a straightforward process, but if done incorrectly, trustees can be held legally liable for their actions or in actions.
For questions about Trusts or Trust Administration, contact my SF East Bay Trust and Estate Law Firm at 925-322-1795 for a consultation.
When Prince died without leaving a will his estate became subject to the requirements of the probate court. One of the first things the probate court asks for is an inventory of one's assets. The value of an estate has to be established, and this is done by having a professional appraiser (called a probate referee) assign a dollar value to the deceased person's real estate and personal property. This inventory of personal and real property, along with its corresponding values is known as the "Inventory and Appraisal" and must be submitted to the court in every probate.
In Prince’s case the company overseeing his estate has only begun to submit the asset inventory to the Carver County District Court. Much of the estate value hasn’t yet been established.
Part of the reason for the partial inventory and appraisal is due to the complexity of assessing Prince's vast estate. Prince kept unreleased recordings and videos in his personal vault and owned several companies that have yet to be valued. In addition, personal effects such as his motorcycles, a 2006 Bentley, jewelry, musical instruments and many more items have not been appraised.
What property is on Prince's Inventory and Appraisal so far?
- Real estate worth approximately $25 million
- Cash in 4 bank accounts
- Gold bars
In Prince’s case the Bremer Trust has thus far been overseeing his estate as Special Administrator. The Administrator (called the executor when a will exists) is responsible for compiling and submitting the Inventory and Appraisal, along with the assistance of his/her attorney.
This aspect of dealing with the assets of a probate is just one of the responsibilities of the representative to the court. Other responsibilities include the payment of debts, taxes and liabilities of the estate and the distribution of the remaining assets to the persons entitled to receive them.
Why is it taking so long to submit a completed Inventory and Appraisal for Prince's Estate?
As outlined above, part of the reason for this is the complexity and extent of Prince's assets. Another reason is that Bremer Trust has reportedly asked to resign their position as Special Administrator and as such, the Minnesota court is in the middle of choosing a new Administrator for Prince's estate. -
The appointment of a new Administrator has sparked yet more litigation in an already complicated probate, with Prince's siblings in disagreement with who should be appointed. One proposed Administrator is New York entertainment attorney L. Londell McMillan, who represented Michael Jackson's mother in his estate. Filings by Randy Jackson assert that McMillan did not act in Katherine Jackson's best interest at all times, but was interested in personal financial gain instead. Furthermore, McMillan already gets a 10% cut of contracts signed by the estate - presenting a potential conflict of interest.
Were Prince's estate being probated in Contra Costa County, I believe the Court would be most likely to appoint a neutral third party, such as a group of professional fiduciaries, or a trusted bank who had the resources to manage his vast estate. In the midst of litigation, the Court often will turn to a neutral third party, rather than choosing an Administrator whose appointment is contested by one party.
Does this sound complicated? In Prince’s case, the complications are almost unceasing as many individuals have come forth as potential heirs, there is disagreement about the Estate's administrator, and litigation pending with the current Administrator. Nevertheless, even in the simplest of estates, the process of probate takes time and costs money. For residents of California (and most other states), a Trust is usually the simplest and least costly way to distribute one's assets.
For questions about Probate, Contested Probates, or Estate Planning, call my Walnut Creek Probate Law Firm at 925-322-1795 to set up a consultation.
Most of us will never need to know the ins and outs of the Criminal Court System, the Civil Court system, and maybe not even the family law system. But almost all of us will encounter Probate Law. Why? Because at some point, someone in your family or close circle of friends will die - and you'll have to deal with it. You may never have to see the inside of a Probate Courtroom (if you're lucky), but you will find yourself getting to know the law associated with it.
As a Trust and Estate attorney who has worked in the field of probate law (trusts/estates/elder law) for over a decade, friends frequently tell me about the encounters they've had with probate law. Some of the stories I hear are positive, others serve as warnings. While I often speak generally about my own cases, I do not make a practice of telling my client's stories (and I should not). Therefore, I thought I'd share with you some of the stories I've been told this year by friends and family who are comfortable with anonymous sharing. First, I'll start with two stories about unmarried "spouses."
The Unmarried Spouse
Part 1: Judith and Robert
This is a story I've heard more than once, to be sure. Two people are in a committed relationship. One has relatively more assets than the other. The couple never legally marries, but for all other intents and purposes act as husband and wife for a large part of their adult lives.
The first tale is from a friend in North Carolina, and the second is from my wife's former boss in San Francisco.
A woman we'll call Judith falls in love with a man we'll call Robert. Judith and Robert fall into a committed relationship with each other. Robert comes from a family of significant wealth, and his mother does not wish for him to marry because of this. At least this is what Judith understands. Now, Judith is a school teacher with no family money of her own. Despite his wealth, she wants to maintain her sense of power and insists they split everything fifty/fifty. She quickly becomes accustomed to his expensive tastes, and frequently finds herself splitting the cost of lavish trips and pricey meals. After many years, Robert leaves Judith.
Judith has to endure the pain and devastation of a divorce, but is entitled to nothing - no spousal support, none of the income Robert earned their relationship, no property - nothing. She has to start over.
Now, perhaps this tale is more a story for a divorce attorney - a strong argument in favor of marriage or domestic partnership as opposed to long term dating. But what if Robert had died instead of left her? Judith would still have been left with nothing save the pain and heartbreak of the loss. In this case, Robert could have secured the future of the woman he loved through a will or trust - without marriage.
Had they married however, under California probate law Judith would be entitled to community property assets and a portion of his separate property assets as well.
Without a marriage, domestic partnership, or Estate Plan, a long term partner is entitled to nothing.
What's the bottom line here? It's simple - marriage isn't necessary, but to protect oneself in the event of death, a Will or Trust must be executed. This is particularly important when two people have vastly different levels of wealth. Now, should a long term couple decide to part ways (ie break up) - a marriage or domestic partnership may be ideal to protect the partner of lesser means. But that's a question for a family law attorney.
Be sure to read Part 2 of "Real Life Probate Stories - The Unmarried Spouse" where I tell the story of Maritza, a beautiful Venezualan woman whose partner died in a tragic San Francisco motorcycle incident.
For questions about Wills, Trusts, and Estate Planning for unmarried couples, call my SF East Bay Trust and Estate Law Firm at 925-322-1795 for your consultation today!