Building Legacies that Last Estate Planning and Elder Law

Why You Need an Estate Attorney

Th (2)When a loved one passes away, it is a good idea to get the assistance of an estate attorney, if for no other reason than to deal with all of the paperwork. 

The government has many things it is very particular about.  However, you are not likely to notice one of those things very much. That is that property all needs to be traceable to a particular owner or owners.

This is important to the government for tax purposes. However, as you do not generally get all your property at one time, it is not always that noticeable. It is not a lot of paperwork for most individual pieces of property.

When someone passes away, things change. Then there is a lot of property that needs to change ownership and there is a lot of paperwork that needs to be done at once, as U.S. News & World Report discusses in "How to Deal With the Paperwork Scramble After a Spouse Dies."

It is easy to get overwhelmed and make costly mistakes when there is that much paperwork to fill out and file in such a short period of time. Those mistakes require even more paperwork and time to fix. People who are grieving and who do not know all the things that need to be done, make these mistakes all the time.

There is a good way to avoid most mistakes. Hire an estate attorney who can help with the process. The attorney knows what needs to be done and has staff to help with the paperwork.

Reference: U.S. News & World Report (June 19, 2018) "How to Deal With the Paperwork Scramble After a Spouse Dies."


Michael Jackson Estate Sues Disney

The Michael Jackson estate has seen so much litigation that it should probably get bulk discounts for court and lawyer's fees. The latest litigation has the estate suing the Walt Disney Company. MP900387776

There might never have been a more contentious estate than that of Michael Jackson. Every few months, just when it seems things have died down, the estate is back in the news because it has been sued or is suing someone itself.

The latest case is over a documentary produced by the Walt Disney Company. In the documentary, footage of Jackson's children was used and short clips of two of his songs were also included. The estate claims this is copyright infringement and that Disney did not even ask permission to use the material.

Disney claims it did not need permission, because it was making a documentary. TMZ reported on this case in "Michael Jackson Estate Sues The Walt Disney Co. You've Got Balls For Exploiting MJ's Kids!!"

The estate does have a duty to protect any copyrights entrusted to it. If someone were to make a movie and use an entire Michael Jackson song in it, then the estate would need to file a lawsuit, if the song had been used without permission. However, in this case the estate might be a little overzealous.

Copyright does allow for the use of material without permission, if that use falls under the fair use doctrine. Doctrine normally does allow for short clips of material to be used and more material can be used, if it is done for educational purposes.

Reference: TMZ (May 30, 2018) "Michael Jackson Estate Sues The Walt Disney Co. You've Got Balls For Exploiting MJ's Kids!!"


Do You Want Your Child to Be Your Executor?

MP900448494[1]Without thinking about it too much, many people designate one of their children to be the executor of their estate. They should think about it carefully, before doing so.

The executor of your estate should be someone you trust to handle your estate just as you want it handled. You want to be certain that the executor will faithfully follow the instructions laid out in your will, including distributing your assets according to your wishes.

Many people trust one of their own children above all other potential candidates for this responsibility. They name that child as their executor, having put little thought into the consequences of doing so. It is not always a good idea, as Texas Lawyer discusses in "Mamas, Don't Let Your Babies Grow Up to be Executors."

Being an executor is not an easy job. If people do not know what they are doing, it is very easy for them to make mistakes. They can often be held personally liable for those mistakes.

An executor does more than just distribute the assets of the estate. He or she must be able to communicate with the court and with any heirs about the estate. If, for example, the executor and a sibling do not get along, there can be problems. In some cases, executors will need to invest assets for a period of time, before they can be distributed. The executors need to do that investing wisely.

Before naming one of your children to be the executor of your estate, think through whether it is a role you really want that child to have. It might be better, in some cases, to name a professional.

Reference: Texas Lawyer (March 6, 2018) "Mamas, Don't Let Your Babies Grow Up to be Executors."


Hidden Costs of Probate

MP900407553People will often go to great lengths to make sure that their estates do not have to go through probate. They often fail to take little steps and find themselves in probate unnecessarily for other reasons.

Probate is often thought of as something that happens after a person passes away. If a person has not planned to avoid probate, then the estate must go through probate for administration before any assets can be distributed to heirs. What many people do not realize, is that probate courts handle more things than just wills.

Consider the case of one elderly couple in Arizona. The wife suffers from dementia. She had a modest retirement account of $25,000. Her husband wanted to withdraw funds from the account to pay her medical bills. Before he could do that, he had to go through probate court to be appointed his wife’s guardian and conservator. In the process, he incurred $6,000 in attorney’s fees as WLTX19 reports in “Man spends thousands in probate costs to help wife with dementia.”

This unfortunate situation can often be avoided. Estate planning attorneys do more than just help their clients’ estates avoid probate, after the clients pass away. They also help people plan for end-of-life care and what will happen should they ever become incapacitated and can no longer look after their own affairs.

If you have not planned for this, then visit an estate planning attorney and ask about a general durable power of attorney. That document will let you appoint someone to look after your finances, if you become unable to do so.

Reference: WLTX19 (Feb. 15, 2018) “Man spends thousands in probate costs to help wife with dementia.”

Arthur Miller’s Archives

A fight over the archives of the late author Arthur Miller pitted two deep-pocketed educational institutions against each other.

Arthur Miller passed away in 2003.  However, literary scholars still have not had the opportunity to review his archived journals, notes and letters.


MP900399277[1]The dispute over where those archives should go has only recently been settled.

During his life, Miller had a close relationship with the Harry Ransom Center at the University of Texas at Austin. On a couple of different occasions, Miller sent the center several boxes of his archive to the Ransom Center for safe-keeping.

He appears to have made it clear in his correspondence, that he wanted the Ransom Center to be the permanent home for the archives.

Despite that preference, Yale inspected the archives and offered Miller's estate $2.7 million for them.

After a heated dispute, the Ransom Center matched the offer, as The New York Times reported in "Inside the Battle for Arthur Miller's Archive."

The problem appears to have stemmed from the fact that Miller never formally left his archive to the Ransom Center.

No estate planning document was created making his preference legally binding. Therefore, his estate fulfilled its duty to maximize the amount of money it could get for the works.

It is not clear that they have that much value commercially, even if they do contain some letters and discussions about Miller's second wife, Marilyn Monroe.

The educational institutions were willing to pay for the prestige of housing the archives of the celebrated playwright.

Reference: New York Times (Jan. 9, 2018) "Inside the Battle for Arthur Miller's Archive."

The Challenge of Compensating Shooter’s Victims

MP900382668[1]Despite his higher than average personal wealth, there are significant challenges to making sure that all of Stephen Paddock's victims are properly compensated.

It still is not clear why Stephen Paddock decided to commit mass murder by shooting at Las Vegas concert goers from his hotel window. He was relatively well-off and had not been in trouble as far as anyone knows.

Despite the mystery surrounding his motivations, his victims and their families would like to be compensated for his actions.

The good news is that his estate is worth approximately $5 million. That money would ordinarily go to his mother, since Paddock is not known to have had an estate plan.  However, Paddock's family has indicated they have no interest in his estate.

The bad news is that there are so many victims, it will be difficult to compensate them all, as The New York Times reports in "The Las Vegas Gunman Was Rich. Will His Wealth Go to the Victims?"

There are some challenges to making sure that all the money goes to the victims.

The first is that the estate could be rolled into an existing victims' compensation fund that has already raised $22 million.  However, all of the victims might not be eligible for compensation under the fund's rules.

The second challenge is that many victims are filing independent claims and lawsuits to the estate.

The case is very complicated and the attorneys who are working on it need to be compensated for their time, but not so much that there is nothing left for the victims.

Reference: New York Times (Dec. 23, 2017) "The Las Vegas Gunman Was Rich. Will His Wealth Go to the Victims?"



Filing a Claim Against an Estate

When a person passes away owing debts, it is important that creditors follow the proper procedures to make their claims against the estate.

Most types of debt do not die with the debtor. If there are any assets in the estate, then the estate is responsible to pay those debts.

The executor of the estate is required to notify any known creditors that the debtor has passed away and then to pay the debt, if possible.

However, no creditor should ever rely on an executor doing so. The debt might not be known or the executor might not know what his responsibilities are.

Creditors who learn that a debtor has passed away, should take affirmative steps to file a claim against the estate, which must be done following proper procedures. Things can get even more complicated, if the deceased put all of his or her assets in a trust, leaving nothing in an estate.

Under such circumstances the creditor needs to file against the trust, as the NWI Times points out in "Filing claims against a trust."

Filing a claim against a trust, can be even more complicated than filing against an estate, or maybe not.

It depends on the state. Every state has its own laws and procedures that need to be followed for a creditor to properly file a claim to receive the debt of a debtor who has passed away.

For this reason, it is extremely important for creditors to contact a local estate attorney to help them with the process. This is something that must be done without delay,  since the statutes of limitations for these claims are often very short, again depending on the state

Reference: NWI Times (July 2, 2017) "Filing claims against a trust."


Exhuming Dali’s Body

Website-photo-state-incentive-page[1]A Spanish court has issued an order to exhume the body of legendary artist Salvador Dali, almost a quarter of a century after he passed away.

Salvador Dali was well known both for his eccentric art and his eccentric lifestyle. He was not known to have any children, but one Spanish woman claims that she is likely Dali's child.

The only problem is that she cannot prove her claims, since Dali passed away in 1989 at the age of 85.

The woman makes her living as a professional tarot card reader, so perhaps she could prove her paternity by reading the cards. However, she refuses to do such a self-reading. Instead, she has asked the Spanish courts to intervene.

A judge found enough basis for her claims, that Dali's body has been ordered to be exhumed from its current resting place underneath a theater in Dali's hometown so DNA testing can be performed, as the Washington Post reports in "Judge in Spain orders Salvador Dali's body exhumed for paternity test."

It is not clear what the woman hopes to gain from the testing. Dali's estate has long been closed and all of his valuable artwork donated to the Spanish government.

Even though the artwork is valued at hundreds of millions of dollars, it is unlikely the woman could lay claim to any of that money. For her part, she seems uncertain of what she wants, if Dali does turn out to be her father.

She has only stated that she wants "what corresponds to her."

It is not unheard of to reopen an estate or exhume a body to prove that the deceased had a previously unknown child. In this case, however, it probably is not going to do any good for the woman, beyond learning whether Dali really was her father.

Reference: Washington Post (June 26, 2017) "Judge in Spain orders Salvador Dali's body exhumed for paternity test."


Alan Thicke Estate Battle

MW-FB938_Thicke_ZG_20161214063245Alan Thicke's sons are fighting with their stepmother over their father's estate.

Two of deceased actor Alan Thicke's sons have entered the probate case to settle their father's estate with a unique claim. The have filed a claim suggesting that Thicke's third wife, Tanya Callau, is attempting to get more of the estate than she is entitled to receive and that she has threatened to go to the tabloids, if she does not get her way.

Thicke and Callau had a prenuptial agreement and she is already set to get a sizeable portion of his estate. Her take includes 25% of his personal assets, 40% of the remainder of the estate, a $500,000 life insurance payment and she can stay in the residence for the remainder of her life.

The sons have not stated what else Callau wants and it is not known what she would tell the tabloids, if she went to them.

TMZ reported this story in "Alan Thicke Sons Go To War With His Wife To Protect the Estate."

Other than the celebrity nature of this estate and the alleged threat to get the tabloids involved, this is, of course, not a particularly unusual estate battle.

Adult children are often at odds with a surviving step-parent and that battle often makes its way into probate court to fight over the estate. This is especially true when there are large sums of money involved.

Wealthy people who have remarried and who have children from previous relationships, need to understand how common these types of fight are. They then need to make estate plans with that in mind, if they hope to minimize the problems.

Reference: TMZ (May 16, 2017) "Alan Thicke Sons Go To War With His Wife To Protect the Estate." Estate Administration, Estate Litigation

Making Sure Your Family Has the Cash They Need

MP900411753[1]Even a great estate plan cannot help your family, if they do not have the cash they need to meet expenses before the estate plan can be executed.

People often go to great lengths to get an estate plan carefully crafted that covers every possible need their family could have. That is a good thing, but it might not be enough.

If you are your family's sole breadwinner and most everything is in your name, then you also need to think about how your family is going to make ends meet while your estate is being administered. Bank accounts in your name are supposed to be closed as soon as you pass away, so your family cannot legally access them.

Unfortunately, that is not going to stop any bill collectors from making calls, and grocery stores are not going to sell their food on credit to your family.

As a result, you also need to plan for your family to have access to cash.

Some advice on how to do that comes from South Africa by way of Personal Finance in "Will your family avoid a cash-flow crisis on your death?" The advice is also applicable to the U.S.

Getting an estate through probate can take a lot of time, depending on the size of the estate and the probate laws in the state.

Your family will not receive the cash from your will for a while, in most circumstances.

If you do anticipate that your family will need cash after you pass away, the most effective way to provide it is normally to take out a life insurance policy. These policies pay out almost immediately upon learning of death.

Another idea is to open a joint bank account with a trusted family member and to put some money in the account that will only be used in the event of your passing.

Reference: Personal Finance (April 22, 2017) "Will your family avoid a cash-flow crisis on your death?"