New York Probate Lawyer Blog

October 26, 2011

Steve Jobs Puts Real Estate in Trusts in New York

A recent article by Thomson Reuters details how the late Apple CEO Steve Jobs has done a good job of moving assets into trusts in order to keep them private from the public.

Jobs, who has a reputation for being secretive of his company’s products as well as his personal life, knew the advantages of will and estate planning when it comes to privacy and distribution of assets.There have been many examples of celebrities who have squandered millions they have earned during their careers because of poor planning and bad decisions. What isn’t reported in the media are the millions of everyday, middle-class Americans who do the same. Those from more modest means can still reap all the advantages by consulting with a New York estate planning lawyer. Even if you don’t have millions to leave behind, you should make sure your children, spouses and other survivors can deal with the stress of handling your estate issues without undue complications.

Jobs, the man who is credited with inventing or reinventing the personal computer, mobile phone, music business and tablet devices, died recently at age 56 of pancreatic cancer. Battling the illness for some years, he stepped down as Apple CEO in August.

Two years ago, he and his wife established trusts and put real estate investments in them. Trusts can minimize the amount of taxes survivors must pay and can keep the assets from being disclosed to the public in probate court.

On top of his shares of Apple, he had a fortune after selling Pixar to Disney, receiving $138 million in Disney shares in 2006. In September, Forbes estimated Jobs’ worth at $7 billion.

Public records show that Jobs and his wife own property in Palo Alto and two pieces of property in Woodside. In March 2009, those properties were put into two different trusts.

If a trust is used, even a publicly recorded will could have very little information. It could say that the assets in a trust are left to a trustee. And they would be handed out according to the trust provisions, which are typically private.

Whether you have millions of dollars or not, every person can benefit from from estate planning.

October 18, 2011

New York Executor or Administrator May Have Rights Regarding The Decedent’s Remains

by Jules M. Haas

Administrators and Executors in New York, sometimes referred to as estate fiduciaries, have many powers and responsibilities. The New York Probate Lawyer Blog has discussed many of these aspects of estate settlement including the identification and collection of a decedent’s assets and the payment of expenses, debts and taxes.

Reference has also been made previously to the common situation that occurs upon a person’s death when decisions need to be made concerning burial and funeral arrangements. When preparing a Last Will, a person can set forth provisions that direct the manner in which he or she is to be buried. For example, a Last Will can state that the person wants to be cremated or to be buried in particular ceremonial manner. Although such directions in a Last Will can be enforced, they are problematic since a Will may not be looked at or even located until after a person’s funeral and burial take place. Moreover, the validity of a Will and the appointment of an estate fiduciary may not occur until many weeks or months after death.

When discussing burial issues with clients, I typically suggest that a good estate plan includes a pre-death discussion of all funeral and burial desires and arrangements with the close family members or friends who would be most likely to make certain that the decedent’s instructions are followed. However, disputes can and do arise regarding the control of a decedent’s remains and its disposition. Section 4201 of the New York Public Health Law attempts to limit such disputes by providing a list of the individuals who have priority to control the disposing of a person’s remains. First and foremost, the statute provides that priority is given to a person who is named in a writing that is signed as provided for by the statute. Absent such designation, a spouse or domestic partner and surviving children are given primary authority. The statute also provides in paragraph 2(a)(viii) that “a duly appointed fiduciary of the estate of the decedent” may control the disposition of remains.

Many different controversies can arise concerning a decedent’s remains. In a recent case, Freiman v. County of Nassau, decided by the Hon. Thomas Feinman (Supreme Court, Nassau County) on September 23, 2011 and reported in the New York Law Journal on September 30, 2011, the Executor of an estate sued the Nassau County Medical Examiner (“ME”) claiming that the ME performed an autopsy without consent from the Executor and contrary to Public Health Law Section 4210. The Court dismissed the case finding that the limited extract of a blood sample was not an autopsy and was performed with consent.

As shown by the Freiman case, disputes regarding a decedent not only involve such common proceedings as Will Contests and kinship disputes, but can relate to events occurring immediately upon death involving the disposition and handling of a decedent’s remains.

October 12, 2011

Trusts In New York, Not Just Wills, Can Come Under Attack Without Strong Planning

by Jules M. Haas

Forbes is reporting on a lawsuit that alleges political figures in Panama, including three Supreme Court judges, have ripped off poor children who were entitled to millions of dollars. The money was in a trust that instead allegedly was turned over to a non-beneficiary after accepting bribes.

Although this is a case of an American whose trust is being questioned in Panama, this happens in the United States as well. While most people consider that only wills are contested, the same can go for the trusts that are established to shepherd assets.But there is a logical way to avoid postmortem legal challenges to your assets — by smart planning of a New York trust or estate. These situations usually go bad when drastic changes are made to a will in the person’s elder stages. Or when no will is present. Or when a trust is not updated for years or decades or old beneficiaries — such as former spouses — are not removed from accounts.

Employing an experienced New York City estate planning lawyer can provide you with peace of mind. Proper planning can help ensure that your wishes are followed after your death and that your estate doesn’t burden your heirs.

The situation in Panama is compelling. An American living in Panama died in June 2006 at age 88. A year before he died, the man signed a will that left the majority of his $50 million fortune to a trust fund that would benefit needy and poor children in that country. A large part of the trust includes ocean-front property that has tripled the value of the trust to more than $150 million.

But the man’s widow, a well-connected Panamanian, challenged the will despite receiving a $20,000 allowance, as well as the right to live in their home and having her children receive bequests.

She sued to challenge the will, claiming that her late husband’s Florida attorney coerced him into signing the will so that he could manage the charitable trust, which is the primary beneficiary of the estate.

A court removed the attorney as the executor, but found the will valid. A second court found the will valid. But the Supreme Court overturned the distribution of the fortune and naming the widow as “universal heir.”

The notary who signed the will and a prosecutor filed challenges to the decision by the three-judge panel, causing the entire Supreme Court of Panama to look at the case, and putting the funds in limbo.

The man’s attorney in Florida, in turn, filed a federal lawsuit, alleging the widow bribed the justices to the tune of $1.5 million each. He further alleges they violated racketeering charges and caused false criminal charges to be asserted against him, including murder, to strip him from acting as an estate executor.

In general, attempting to significantly disinherit a spouse or child can cause legal complications. Proper estate planning and engaging the services of an experienced law firm is your best bet when it comes to ensuring that your wishes are carried out after your death.

October 3, 2011

New York Probate and Administration Depend Upon the Domicile of a Decedent

by Jules M. Haas

The New York Probate Lawyer Blog has talked about many situations involving the probate of a decedent’s Last Will or the intestate administration of an estate where there is no Will. These proceedings comprise the most basic avenues for a decedent’s estate settlement.

However, even more fundamental, and as a preliminary step to commencing such proceedings, a determination needs to be made as to whether the New York Surrogate’s Court is the appropriate Court to initiate the case. If New York is not the proper forum, the Court will not allow the proceeding to be filed. It may be that another state (i.e., Florida, New Jersey), may be the proper place to file and administer the estate proceedings.

Choosing the proper forum or Court is not always an easy task. This choice of forum begins with a finding of the decedent’s “domicile”. Domicile is an extremely important issue since it will not only affect the location of the Court that is appropriate to process the decedent’s estate, it may very well determine the State law that controls the issues surrounding estate administration such as spousal and kinship rights. Domicile also affects many other issues such as taxation.

Domicile essentially refers to the place that is considered a person’s primary home. A person can have many different residences around the world but only one primary home or domicile. Domicile is defined in the New York Surrogate’s Court Procedure Act Section 103 (15) as “A fixed, permanent and principal home to which a person wherever temporarily located always intends to return.”

Domicile can be difficult to determine where a person has residences in more than one state or country and divides his or her time between these locations. Among the factors that a Court reviews in deciding an issue of domicile are where a person files state and local income taxes, and where a person has a driver’s license, voting registration, and other social and business connections.

As noted, domicile is important because it may determine various rights. For example, a decedent who is a domiciliary of New York will be subject to New York statutes for the purposes of determining the decedent’s distributees or next of kin. Statutes of a different state, for example, New Jersey, may differ from those in New York and specify different individuals or interests in a decedent’s estate. The result may cause variations in amounts inherited or even rights to an inheritance.

A recent example of the importance of determining domicile was seen in Matter of Ranftle, decided by New York County Surrogate Kristin Booth Glen on September 14, 2011 and reported in the New York Law Journal on September 23, 2011. In Ranftle a question arose concerning whether a decedent was domiciled in New York or Florida. The importance of this question centered around the fact that unlike New York, Florida would not have recognized the decedent’s same-sex marriage that took place in Montreal, Canada. Therefore, if Florida law controlled, the decedent’s spouse may have lost inheritance rights in the Court proceedings. After an extensive review of the numerous factual contacts the decedent had both in New York and Florida, Surrogate Glen determined that the decedent was a New York domiciliary.

As a New York Probate attorney I have reviewed many cases with clients where an initial determination must be made as to the proper Court in which to commence a probate or intestate administration proceeding. Additionally, a thorough review of a client’s domicile is imperative when preparing an estate plan so that the provisions of a Last Will or Trust will be in accordance with the relevant State laws.

September 29, 2011

AARP: Dads Have Fewer Heart Problems, But Still Must Plan Estate in New York

by Jules M. Haas

A new study by AARP, university research and the government shows that fathers are less likely to die of heart-related illnesses than men without children, the Associated Press reports. The study is considered the largest ever to look at fertility and mortality and involved 138,000 men nationwide.While this may be good news for dads, genetics and lifestyle must also be factored into studies about heart health. This study may present a good time for fathers to discuss heart health, it also can be used as an opportunity to talk about New York estate planning.

New York probate lawyers have seen many older New Yorkers struggle at the end of their lives, perhaps after diagnosis of an illness or disease or following an unexpected accident. Too often, seniors may wait until dementia or other illness robs them of their ability to plan. .

Men in America suffer from heart problems. Long hours earning a living and raising a family can take a toll. Taking the time to ensure loved ones are protected can bring peace of mind. Thus, men in their 30s, 40s and 50s should have plans in place. The process does not have to be complicated. And not just those with significant assets need estate plans.

The large-scale study found that marriage, having many friends and even having a dog as a companion, can lower the chances of heart problems and cardiac-related deaths. And the study shows that having children may be motivation for fathers to take care of themselves physically.

Researchers found a link between infertility and later health problems. Testosterone levels can affect good cholesterol, the article reports.

But the study also had some caveats:

Researchers couldn’t calculate how many in the study were childless by choice and not because of infertility.
They didn’t study the men’s partners’ infertility problems.
They didn’t calculate blood pressure or cholesterol numbers.
Fewer than five percent of participants were minorities.

While it is an interesting topic and certainly one to consider, it may not necessarily apply to everyone. But what does apply to everyone is proper estate planning — for both those with children and those without.

For the fathers, New York estate planning is critical in order to ensure their children are properly taken care of when they pass on. When a person is nearing death, they don’t want the added stress of worrying about where their money will go or if their children will be left with valuable or sentimental heirlooms.

For the childless, the need is no less important. Even if there aren’t children to leave assets to a spouse, siblings, other family members, friends or even a trust established to support philanthropic desires can result from careful planning.

Don’t wait until major health problems have struck to take the initiative and plan out your will or estate in New York. Have peace of mind and focus on more important things in your time of need.

September 27, 2011

World Alzheimer’s Month Good Time to Plan for Comprehensive New York Estate Planning

by Jules M. Haas

September is World Alzheimer’s Month, calling attention and awareness to this devastating disease. It is also a time to reflect on how we should all be planning to help older family members and friends who have yet to get a handle on their estate plans.

In some cases, a Manhattan guardianship attorney must be called on to help ensure that an elderly relative who has dementia is properly cared for. Mental Hygiene Law Article 81 in New York allows for the court to appoint a guardian to assist a person who is incapacitated.In an emergency, the court can appoint a temporary guardian to manage the loved one’s affairs while the court reviews the matter.

Forbes.com reports that someone develops Alzheimer’s disease every 69 seconds in the United States. By 2050, more than 13 million Americans are expected to have the disease, spending $1 trillion on medical and long-term care costs. The September awareness campaign calls attention to find a cure and better ways of treating the illness.

Typically, medical treatments and care plans are likely a family’s most pressing issues for their loved ones with Alzheimer’s. Also important to consider is how well the family members are progressing as caregivers, and possibly setting up in-home or assisted living care for the person. A living will may also be necessary to allow for the care of a loved one who becomes incapacitated. End-of-life decisions can be laid out.

Active planning brings peace of mind that everything will be taken care of as the needs arise. Dissension among family members after your passing can be minimized and the process can reduce stress for all involved.

In still other cases, a will is contested in New York. Protecting the integrity of a will or challenging the disbursement of an estate requires an experienced law firm.

As we recognize the need for research, and the need for improved treatment and care options for those stricken with Alzheimer’s, getting serious about estate planning is a proactive step we can all take.

September 22, 2011

Queens Estate Probate May Involve The Turnover of Property Wrongfully Transferred

by Jules M. Haas

New York estate probate cases in Queens and Brooklyn, as well as other counties throughout New York State, can become very complicated due to improper pre-death transfer of assets.

In what has become a familiar occurrence, a close family member or confidant such as a health care aide, arranges for the ownership of assets belonging to another to be transferred to the name of the family member or confident. These transfers often occur only a short time before the death of the individual owning the assets who is making the transfer. The transfers can take many forms such as an outright change of title on a deed or the mere addition of a name as a joint owner or beneficiary on a bank account or retirement fund or insurance. The result of such transfers is that once the transferring person dies, his or her estate has already been stripped of the property due to the pre-death transfer. When the person’s Last Will is probated, the estate plan and beneficiary designations that are set forth in the Will cannot be effectuated since there are no assets to implement the plan.

I have represented many clients in situations where such transfers have occurred. The unfortunate and distressing reality is that the client’s recently deceased parent or other loved one would never have transferred all of their assets prior to death and, in effect, disinherited their close family members. Demonstrating that the pre-death transfers were improper and wrongful can be difficult.

At this juncture, Court intervention becomes imperative. The Surrogate’s Court Procedure Act [SCPA] provides for proceedings by which wrongfully transferred assets of a decedent may be recovered by an estate. These proceedings are commonly referred to as Turnover Proceedings. The most common form of such legal action is found in SCPA Section 2103 entitled “Proceeding by fiduciary to discover property withheld or obtain information”.

Both intestate and probate estate settlement can benefit from utilizing the statutory process of SCPA 2103 to recover estate assets. A recent example of the use of this law was seen in the case of the Estate of Hill, Surrogate’s Court, Queens County as reported in the New York Law Journal on August 19, 2011. In Hill a Preliminary Executor sought to recover the decedent’s real estate that one of the decedent’s daughters had transferred to herself prior to the decedent’s death using a power of attorney that authorized the making of gifts. The Preliminary Executor also sought to recover bank account transfers, as well. While Hill involved procedural motions prior to a final determination of the merits, the scenario of possible wrongful pre-death transfers using a power of attorney illustrates the problems facing many estates and family members. Although the preparation of a Last Will and New York estate plan are essential, very often a watchful eye and general oversight of an older family member’s affairs is equally important and can protect them from exploitation.

September 20, 2011

Smart New York Estate Planning Leaves Millions to Michael Jackson’s Family

by Jules M. Haas

The Associated Press is reporting that Michael Jackson’s estate has generated $310 million since he died two years ago mired in debt, enough to allow officials to make a $30 million payment to his mother and three children.

It must have taken an astounding amount of work to generate $310 million in two years. But because the King of Pop has such a fan base, it is apparently very possible especially considering a new album release and the selling off of memorabilia and personal possessions that likely have fetched high-dollar amounts at auction.Yet most of us don’t have millions of fans and the assets to sell to make those types of strides financially after death. That’s why being smart now is so important. Effective New York estate planning is crucial because without properly considering your assets, debts and what you will leave behind, your surviving family members could end up paying the price. That’s why it is prudent to consult with an experienced New York City Probate Attorney before it is too late.

Jackson’s case shows why choosing an executor for a New York City estate can make all the difference in the world. Two men were appointed executors of Jackson’s estate and, according to the news article, they have generated $310 in gross revenues. Additionally, they have refinanced and secured the estate’s interest in the Michael Jackson music catalog, MiJac and the Sony/ATV publishing catalog. The executors have reduced debt obligations by more than $90 million, and refinanced loans Jackson had taken out at far lower interest rates to save money.

Creditors have been paid off and taxes paid. While some creditor claims are open, the deadline for collecting has passed. A hearing to approve the plan is set for Sept. 28.

An executor is a person named in the person’s will and is appointed by the court when the will is admitted to probate in New York. The executor is responsible for distributing assets after paying taxes, debts, claims and other financial matters.

While it may seem simple, it is a very complex job and one that should be entrusted only to the most qualified and trusted person in your life. Look at Jackson’s case — he left mounds of debt from reckless spending before he died and left his executors with quite a task. But with smart financial moves and advice from well-informed probate lawyers, they have been able to erase or pay down debt and produce money for his family members.

As mentioned before, the average citizen doesn’t have the fame or assets to pull this off, so planning now for assets to be distributed and how you want your affairs handled upon death should be a priority, regardless of your age or financial situation.

September 13, 2011

Do Women Care Less About Estate Planning in New York?

by Jules M. Haas

As the New York Probate Lawyer Blog recently reported, women in New York and elsewhere are resistant to planning their estate. A recent Forbes article encourages women to take the necessary steps.

While women aren’t alone in their procrastination of estate planning in New York, they seem to take an approach more lax than their male counterparts. While no one likes to plan their death and what will happen to their assets after, it is a critical aspect of adulthood. Many women take to the task once they realize its importance as, in many ways, they are more organized and more conscientious — particularly when it comes to providing for children.No one really wants their assets dealt with by a judge and other strangers. And if you have children, they must be taken care of, with specific plans to help them live their lives without the aid of parents. Yet a recent survey found that 47 percent of women were concerned with their weight, compared to 43 percent who care about protecting their assets and contacting an experienced New York City Probate Lawyer to help them get their affairs in order.

A new Forbes article, by the same author, looks at the topic again, questioning why woman are so resistant to taking the matter into their own hands. To be fair, men are not exactly lining up at the doors of estate planners. It’s a problem for both sexes. A reluctance to deal with death is just part of it. Another is the mistaken belief that only the rich need such services. In reality, proper estate planning and making the most out of your legacy is even more important for those middle class families of moderate means.

By most accounts, the average person believes death is a far-off event that can be addressed at a later time. But the reality is that these estate matters must be handled now, with sound mind and with the best interests of the person and their loved ones in mind.

As the author of the article states, women with children are unlikely to plan their estates. Yet the 10-year anniversary of the Sept. 11 attacks should remind us all that planning is essential, even when chances of death seem remote. And older women are even more behind in their estate planning. Because they tend to live longer and marry older spouses, they are more likely to be widowed and must make decisions on what will be left to survivors.

Here are a few estate-related questions for women to consider:

What’s the difference between a will and a living trust? Both a will and living trust are documents able to transfer assets, but only a will can be used to appoint a child’s guardian. A living trust can hold assets while you are alive, which can have a number of benefits.

Whom to trust? The power of attorney is critical and should appoint a person you trust, like a family member or close friend.

Who will take care of the kids? Without proper planning, children can be thrust into a custody battle or maybe no family members will be willing to step up and take care of your child. That’s why filing formalized documents can clear the air and decide who will care for the children subject to Court oversight.

What is in savings? Make sure there is money set aside to pay for funeral costs, burial and other short-term related costs because often, joint money or retirement accounts can be frozen for some time.

September 8, 2011

New York Executors Use Their Powers to Collect Assets For Estate Settlement

by Jules M. Haas

Executors and other fiduciaries in New York, such as Administrators, are given numerous powers to help them handle estate settlement including the collection of estate assets. A fundamental job of a fiduciary such as an Executor in Manhattan or Westchester or other New York locality, is to protect and collect estate assets.

Estates, Powers and Trusts Law section 11-1.1 is entitled “Fiduciaries’ Powers “and sets forth many of the powers that a fiduciary can exercise. For example, paragraph (b)(3) of the statute authorizes a fiduciary “To invest and reinvest property of the estate or trust under the provisions of the Will, deed or other instrument or as otherwise provided by law.”

Estate assets can be varied and range from common items such as bank accounts, stock portfolios, and residential real estate to more less common interests such as royalty earnings relating to publications, inventions or compositions or oil, gas or mining, or various types of business entities such as limited liability companies or family business corporations. Estate assets may also be in the form of life insurance, annuities and retirement funds.

In each instance, it is necessary that the estate fiduciary identify all of the estate assets, collect the assets and distribute the assets to the estate beneficiaries in accordance with the terms of the Last Will or the laws of intestacy, as the case may be.

In many instances, estate assets may not be readily identified. For example, an article by Eric Gardner that appeared in the Hollywood Reporter on August 31, 2011 “Elvis Presley Estate Sues to Recover Ringtone Revenue” talks about a lawsuit recently filed in Germany by Elvis Presley’s estate which seeks payment for “new media income such as ringtones, downloads and entertainment apps.”

Another type of estate asset that is more common is a recovery due to the wrongful death of the decedent. However, the damages that the estate may be entitled to due to the decedent’s death may not always be apparent. As was recently reported in the Beverly Hills Courier on August 17, 2011 in a report entitled “Wrongful Death Lawsuit Over Christian Brando’s Death Settled” the ex-wife of the late actor, Marlon Brando, had commenced a lawsuit against a doctor due to the death of her son, Christian. As reported, the lawsuit alleged that due to the doctor’s negligence, Christian’s estate was “harmed because when he [Christian] died, he lost the benefit of an inheritance from his father’s [Marlon Brando] estate.”

I have acted as the attorney for Executors and Administrators on many occasions and helped my clients identify, protect and collect estate assets.