Recently in Wills Category

Undue Influence in NY & Pressuring Vulnerable Seniors

April 21, 2014,

Family feuding is all too common, and finances are often at the root. One argument often made in legal cases involves these matters is that an adult child or other close relative is abusing a position of trust and confidence with a parent to take advantage of them financially. Proving such an abuse is the challenge of an undue influence lawsuit.

Undue influence is usually defined the use of confidence for the purpose of taking unfair advantage of one with a weakness of mind (or other vulnerability). In other words, undue influence is about pressure. The question is when does pressure become excessive, and thereby amount to undue influence. In a legal case where undue influence is an issue, a court may consider a number of factors:

1. Unusual or inappropriate time of discussion of the transaction;
2. Unusual location of the completion of the transaction;
3. Insistence that the transaction be finished at once;
4. Repeated warning of the adverse consequences of delay;
5. Involving multiple individuals to apply persuasive pressure;
6. Absence of third-party advisors.

To illustrate, it is useful to consider a few real world examples:

In 2011, the children of actor Tony Curtis claimed that their father was the victim of undue influence. Curtis, redid his Will and changed other aspects of his estate plan a few months before he died from heart failure. As a result, Curtis's five children, including actress Jamie Lee Curtis, were left with nothing. The Will stated that Curtis intentionally disinherited his children, yet no reason was given. Shocked and deeply suspicious, daughter Kelly Lee Curtis sued, accusing Tony's widow Jill or others of convincing Tony to change his Trust through undue influence, fraud, or duress.

In 2009, comedian Pauly Shore filed a lawsuit against his brother, Peter, alleging the use of undue influence against their 79-year old mother, Mitzi. Mitzi suffers from neurological problems, including Parkinson's disease. Prior to her decline in health, Pauly, Peter, and their mother were joint directors of The Comedy Store, a famous Hollywood comedy club. When Peter subsequently took to managing the club's finances, Pauly requested that Peter turn over about three years worth of tax returns and financial documents. After Peter refused Pauly's request and instead fired Pauly from the club's Board of Directors. Pauly brought an undue influence lawsuit, claiming that Peter orchestrated firing Pauly from the Board by taking advantage of their mother's frail health.

Undue influence doesn't just disturb the families of the rich and famous. Too often it surfaces in the financial matters of everyday people, whether in wills and trusts, or the operation of a family-owned business. When it does, it's time to speak with an experienced attorney about your legal rights so you can protect the vulnerable from the unscrupulous.

The Power of Legacy - Could a Will have Prevented WWII?

April 11, 2014,

Life is about far more than the accumulation of material wealth. Working hard and collecting valuables to enjoy and pass on to others at death is nothing to spurn. But there are many other things that are accumulated over a life and can be passed on at death: morals, lessons, memories, stories of hope, words of kindness, inspiration, and countless other values.

When thinking about life transitions and estate planning, it is important to consider those intangibles just as much as those items that have a monetary value. This is why, in addition to creating legal wills and trusts, we work with New York families on "ethical wills" to pass on all of those moral and spiritual items that solidify a legacy.

Advice for the Future -- Preventing a War
One common part of an ethical will is the sharing of advice to the next generation. The value of passing on advice should not be underestimated. An extreme example suggests that one of the greatest horrors in human history--World War II--may have been prevented if only a last will and testament was more widely disseminated.

A Daily Mail story last month discussed the will of the former President of Germany, Baron Paul von Hindenburg. Hindenburg led the nation until his death in 1934. He was widely respected in the country, particularly among the powerful political class.

Recently declassified information suggests that Hindenburg's last will and testament did far more than dispose of his property. The will also contained very specific advice to his country about the preservation of democracy and limiting the power of the up-and-coming populist leader at the time: Adolf Hitler. Recognizing Hitler's goal of taking complete control of the government, Hindenburg's will explained that the country need to maintain established principles, like an independent army and separation of powers. The document was intended specifically to prevent Hitler from fulfilling his ambition. One historian described the will as "a bomb timed to go off posthumously and blow Hitler off course."

Unfortunately, it did not work out as intended. That is because before the will was made public, Hitler found out about the contents. He immediately ordered the document seized, and the German people never learned of the lessons their statesman wanted to impart. Instead, a forged document was released to the public which wrongly asserted that Hindenburg had nothing but glowing praise for Hitler.

While this example is a bit different than the lessons that many New York seniors wish to impart, the underlying principle stands. Estate planning offers a chance to think wholistically about the meaning of life and how one would like to be remembered by the generations to follow.

Planning for Immortality - A Legacy in the Online World

March 28, 2014,

http://legacylocker.com/

Passing on assets and saving on taxes are viewed as the hallmark of estate planning. But as we often share with clients, there are many intangible aspects to long-term planning that are often even more valuable that homes, cars, and savings accounts. A legacy.

An important part of many elder law estate plans is an "ethical will." This refers to non-legally binding document that shares values to friends and loved ones. An ethical will is about one's legacy, sharing information about one's life purpose and reminding family members of morals and cherished principles.

Leaving a Legacy in the 21st Century
Ethical wills made their way into Shakespearean plays and existed in various forms in ancient Rome and Greece. The world has changed dramatically over the centuries, and that includes the way a legacy is left to others. In fact, with the proliferation on various online account and social media services, more and more individuals are finding out how one can become "immortal" online.

An interesting story last week discusses how the permanence of one's online life can come as both a comfort or burden to surviving family members. For example one adult son explained the stress that comes on his mother's birthday every year--as old friends post Facebook messages, sending well wishes without knowing that she passed away three years ago. On the other hand, Facebook allows pages to become "memorialized" serving as a slightly more appropriate setting.

It is critical to think ahead about how these pages will be preserved. Considering their permanence, they will undeniably become a key component to your long-term legacy. There are no one-size-fits-all approaches to handling an online legacy. There are many different questions that you should consider, perhaps putting the details down in writing to ensure it all works as requested. Some things to consider include:

**Should someone have access to your email account after your passing?
**What should happen to your Facebook page? Should it be deleted, turned into a "memorial" or managed by another person?
**Are there any online photos, comments, or conversations that you would like shared or deleted?
**Would you feel comfortable using a special online legacy account, such as Legacy Locker?
**Should another have access to your online purchase record, at Amazon, ebay, or similar retailers?

Preserving an online legacy and creating an ethical will is a reminder of the comprehensive nature of estate planning. Doing this work is far more than just filling in the blanks on legal forms. It requires careful consideration about long-term goals, understanding of intricate legal details, and honest consideration about the most treasured values in one's life. For help crafting a comprehensive elder law estate plan throughout New York, please contact our experienced legal professionals today.

Don't Leave Your Planning Up to a Coin Toss

March 25, 2014,

A headline-grabbing story last week in the New York Post offers a good reminder of the need to be crystal clear in certain estate planning situations to avoid drawn-out legal battles.

According to reports, two siblings are engaged in a dispute over how to divide up an inheritance that they are to split from their uncle. The two men are the nephews of David Barrett, a well-known Manhattan interior designer who passed away in 2008 at the age of 85. Per the terms of Barrett's estate planning, his $5.6 million estate is set to be split between the two men.

However, the division of those assets into two is apparently not going smoothly.To help determine how the various assets are to be split, an executor of the estate apparently recommended that a coin toss be used. For example, to determine ownership of a painting valued at around $45.000 a coin toss was performed, with the younger brother winning.

This did not sit well with the older sibling, who has reacted to the loss by making aggressive accusations against his sibling and executors in addition to filing a lawsuit challenging the distribution plan. The most recent suit has put a hold on the process, slowing the ultimate distribution and preventing any named heirs from receiving property from the estate.

In defending the lawsuit and his concern about the distribution plan, the older brother explained "This case is about more than my share of my uncle's estate. It is about my uncle, his legacy, his reputation, and his family."

Planning Lessons
All those who follow high-profile estate planning matters appreciate that feuds of this nature are not rare. When significant assets are at stake, all those involved are frequently willing to go to extreme lengths to ensure the matter is handled to their liking. Unfortunately, there are often no winners in these situations, as the drama often causes significant delay and enormous resources spent on the legal battle itself. There are various lessons that can be taken from this Barrett story:

Be As Specific As Possible - While it is impossible to specifically list every single item big or small, it is usually worthwhile to explicitly indicate where every valuable item will go. This is particularly true when an estate is divided between various parties who may disagree on who is to get what piece of personal property.

Understand the Personalities Involved - Certain friends and family members may be a more "hot headed" than others. Conflict is more likely to be prevented with those unique personalities are accounted for.

Prevent Surprises - Dispute often arises when one party is unprepared for some outcome. By having clear discussions with heirs ahead of time, all parties are able to come to terms with how the affairs will be handled This may prevent a knee-jerk, defensive reaction when unexpectedly confronted by an unfavorable part of the plan.

Not Allowed to Disinherit - Spousal Right of Election in New York

March 17, 2014,

New York residents are urged to craft an estate plan so that their assets are passed on per their own wishes--and not based on arbitrary state laws. Unless you explicitly make your desires known, then all decisions will be left up to others. However, there are actually a few rare instances when the law explicitly prohibits you from making certain planning choices. These situations are not common, but it is important to be aware of them in case they conflict with your plans

The most notable rule of that nature relates to disinheriting a spouse. In most cases, the law automatically allows a spouse to inherit certain assets if he or she chooses--regardless of the specific estate planning provisions.

Marriage is deemed a special legal relationship that is voluntarily entered into under the law. As a result, state statutes include default rules that protect the relationship. This is somewhat different from other close relationships--like parent-child. A resident can always end a marriage to legally break the spousal relationship. That is why it is usually possible to disinherit a child but not a spouse.

NY Spousal Right of Election Law
There are countless different scenarios where one may want to remain married to an individual but not leave them assets as an inheritance. This can be a strategic choice and not necessarily motivated by animus. An estate planning attorney can explain if a strategy that does not leave assets to a spouse makes sense.

However, it is important to understand that there is a NY law that allows a spouse who is disinherited to voluntarily choose to collect various assets--even if they were designated for others. Specifically, the spouse can choose to take either ⅓ of the deceased "net estate" or, alternatively, $50,000. Under the law, the net estate may include many different assets. Beyond those indicated in a will, it can include joint accounts, living trust assets, and some assets where a beneficiary is designated. In addition, that net estate may also include certain gifts given within the last year. In other words, giving away asset to others as a means to deplete an estate is not a viable alternative.

This spousal right of election does not happen automatically. The disinherited spouse has to affirmatively exercise their right to take advantage of the provisions. There are various time limits to doing so. In addition, the right may be curtailed in some instances based on a pre- or postnuptial agreement.

For help creating a tailored elder law estate plan to fit your needs, please contact our NY attorneys today .

Secret Marriage, New Will Leads to NY Estate Fight

March 6, 2014,

It is impossible to predict exactly how every family member will respond in the aftermath of a passing. However, as experienced will and trust lawyers know all too well, there are many situations that dramatically increase the likelihood of controversy that leads to a contested estate. Mixed families, a large age-gap between spouses, and secrecy are often signs of family tension that may erupt after a death.

A high-profile New York estate feud offers an example of that very situation.

NY Photographer Bern Stern's Estate Fight
Celebrity photographer Bruce Stern is well-known for his legendary photos of Marilyn Monroe--many taken just before her death. Stern died last year at the age of 83, leaving a roughly $10 million estate behind. As discussed in a recent Post story, family members are in bitter disagreement over how the estate should be divided.

Stern had three children, all from his first marriage that ended in 1975. As far as the children knew, their father's assets were to be distributed per the terms of a 2007 will that split half the estate between the children while giving the other half to his own photography foundation.

However, just before his passing, Shannah Laumeister came forward claiming that she and Stern were married in secret in 2009. She directed a documentary about Stern in 2010 and is nearly 40 years his junior. The adult children had no idea of the union.

Laumeister produced a second will from 2010 that created a private trust with all of the assets and gave control of the trust to Laumeister. According to Surrogate Court filings, Laumeister claims that the adult children would still receive cash bequests as part of the new will, but the details of those bequests are unclear.

Psychiatry Records & Questions About Mental State
Expectedly, the adult children challenged the 2010 will. The feud is making its way through the court system. Most recently, reports suggest that the Laumeister is fighting to block sharing of information about Stern's meetings with a psychiatrist.

For their part, the children argue that information about Stern's mental and medical state when the contested will was created is of obvious relevance. Alternatively, the younger wife argues that release of the information would permanently damage Stern's reputation. The value of his estate is closely tied with his artistic works and reputation-damage would significantly harm the estate, she claims.

An obvious take-away lesson from this story is a reminder that an experienced estate planning attorney can point out the many red flags that suggests a feud may be likely. A legal professional can offer counsel on steps to take that may eliminate secrecy or otherwise increase the chance of a smooth, conflict-free process that is resolved fairly and efficiently.

Are You Too Young to Have an Estate Plan?

March 4, 2014,

A quick Google search reveals about 10,000 articles providing 5, 10, 15, or more reasons why everyone needs an estate plan. While that makes a catchy headline, it may not be technically correct. After all, in most instances, it is impossible for minors under 18 years old to enter into legal agreements. It is not reasonable for your five year old (or even high school student) to have a will drafted or a trust created for assets.

But realistically, when at what point is it prudent for New York resident to draft at least a minimal estate plan, including a Last Will and Testament? Perhaps more importantly, at what point does it make sense for one to invest some money in having a professional create an estate plan?

Not Age But Life Circumstances
The answer to the question is the perennially legal refrain: It Depends. It is best to view estate planning needs not by age but by circumstances. For example, even young adults should consider crafting a quality estate plan if:

1) You have children - The naming of alternative caregivers and other preferences for child-rearing is a part of all plans for parents with young children.

2) You own a home - Most young adults do not yet have sizeable assets to their name. But there are exceptions. Some have inherited sizeable wealth from parents or grandparents. Other may have saved and purchased a large asset. Ultimately, anyone with significant resources of any kind should ensure they have legal documents in place for a seamless transfer of those assets (and potential tax savings)

3) You have particular funeral/service preferences - It is only through a Will that your specific ideas about burial and funeral services can be enshrined legally. Residents of all ages with unique spiritual or religious preferences about these matters may want to ensure their wishes are explicit.

4) You have unique health challenges - Estate plans are understandably on the minds of older residents for whom death seems closer. However, all those with various health challenges should have a plan in place to name alternative decision-makers in case a disability arises which makes it impossible for one to care for themselves. This is true no matter how old you are.

In short: It may not make sense for everyone to pay for an estate plan immediately upon graduating from high school. But in some cases it could make sense. Not all 18 year olds need a detailed plan. But an 18 year old who owns a house or has children might need one.

An experienced estate planning attorney can provide straight-forward advice on what type of planning, if any, makes sense in your case. For help on these issues in Albany, Saratoga spring, Rhinebeck, Fishkill, Middletown, and many other communities through New York, please contact our lawyers today.

Marriage Matters - A Reminder of the Tax Benefit

February 28, 2014,

Earlier this week we discussed the tragic death of New York actor Philip Seymour Hoffman. There are many estate planning lessons to take away for Hoffman's situation, including the need to update a will after every life event. Hoffman unintentionally left out two of his children by not updating his will to include them specifically--his oldest son is named directly as a beneficiary of a trust.

Yet another lesson that fellow New Yorkers can take from the case is the role that marriage can play in these matters.

Companions vs. Spouses
According to reports, the mother of Hoffman's three children was long-time girlfriend Marianne O'Donnell. The couple was together for years, though they apparently were split in the few months before the death (allegedly as a result of Hoffman's relapse). At no point was the couple married. This is not necessarily an unusual state of affairs for couples today. Due to many personal factors, even the most intimate partners with decades together may choose not to formalize that union by way of a marriage. In the eyes of the parties, their relationship is the same regardless of whether there is official government sanction or not.

However, it is important to remember that the law does not view all couples the same. In fact, the entire purpose of marriage is to classify couples into different camps with thousands of rights on the line. Those rights have clear estate planning implications.

Per the terms of Hoffman's will the bulk of his suspected $35 million estate will go to O'Donnell. However, both New York State and the federal government impose an estate tax. Above the exemption amount, the tax can hit as high as 40%. Of critical importance, the tax does not apply to transfers between spouses. But Hoffman and O'Donnell were not married, and so she will likely be hit with an estimated estate burden of $15 million or more. A marriage would have eliminated 100% of that burden.

The bottom line is that in cases like this, marriage saves on taxes. There are many different situations where a transfer of wealth to another would be taxed except for transfers between spouses. While no one should make life decisions regarding marriage based entirely on taxes, one should not overlook the reality that marriage matters under the law.

Basic New York estate planning principles apply in virtually all cases, no matter if you have a $35 million estate or if your main asset is a family home. To ensure you take steps to protect your loved ones for the future, be sure to contact a NY estate planning attorney today.

Thinking About the Un-thinkable - When Children Are Involved

January 21, 2014,

According to a survey by legal services website RocketLawyer, 70% of American parents with minor children do not have a Will. The survey revealed that 76% of respondents believe that a Will is not an "urgent" matter. Parents of young children certainly must have many urgent claims on their attention. Many of them, it seems, are not inclined to give any consideration at all to the horrible possibility that they may not be around to raise their children themselves.

What would happen to your children if the unthinkable did happen and you were no longer there to care for them? If your children have two parents in their lives, then you might think that the chances of both parents dying in a common accident are too remote to merit serious consideration. Still, remote as the chances may be, we know that it does happen. Every day, couples face deadly risks together. How many times have you and your spouse found yourselves in a place where some quite plausible accident might befall you both? A car accident? A plane crash? A house fire? Upon reflection, you might discover that you face the risk of common accident almost every day.

Protect Your Child's Future
In New York, if both parents die, the fate of a minor child will be influenced heavily by the parents' Will, or the absence of a Will. If the parents leave a Will that designates a guardian for their child, the prospective guardian may petition the Surrogate's Court for appointment as guardian of the child's person or property (or both). The court is obliged to act in the best interest of the child, but within this broad parameter, New York courts will show great deference to the parents' wishes. The court will confirm that the prospective guardian (and other adults in the guardian's household) are not named in the New York State Registry of Child Abuse and Maltreatment. If there is no evidence of past abuse, the court will likely grant the petition for guardianship.

If there is no Will, the court will have to devise its own plan for the child. If you have ever given the guardianship question much thought with respect to your own family, you know how complicated this decision can be. Suppose a child has two loving adult relatives, both of whom wish to act as guardian. One is the child's favorite uncle, but he has four kids and a wife who is overwhelmed by the idea of adding another to their brood. Would it be best to have this child live with a more distant relative, if it meant that the addition of the child to the new household would cause less strife?

Although there is no perfect solution, in most cases, parents will be in a better position to find the best alternative. Think now about the unthinkable, and going forward, you can be assured that you have provided the best possible future for your child. Contact our estate planning attorneys today to learn more.

Last Minute Gift? Cashing A $100,000 Check

January 8, 2014,

Estate planning disputes can arise in any situation and based on any number of facts. However, one situation where disagreement is far more likely to arise is when planning steps are taken, gifts are made, or other actions pursued while an individual is on their death-bed or known to be very sick. Naturally, observers are skeptical of these actions, because they are more likely to involve fraud, mistake, coercion or other means.

That does not mean that all death-bed actions are unenforceable. On the contrary, many Wills are and signed and trusts created at just this time specifically because one wishes to get their affairs in order near the end. However, because of the potential for abuse and the natural skepticism, estate cases frequently involve last minute actions.

Was It a Legitimate Gift?
Consider, for example, a case discussed today in the Morning Sentinel. A former university professor died recently, leaving virtually all of his wealth to the university itself. The only exceptions were his car and a few valuable personal belongings that he left to his friend, a man named Daniel Toto.

However, a dispute is brewing regarding a check that the professor allegedly wrote to Toto for $100,000 a week before his death. When Toto went to the bank to cash the check--two days after the death--the bank refused to honor it. That is because the personal representative for the professor's estate (the executor) challenged the authenticity of the signature on the check.All of this has led to a lawsuit filed by Toto against the estate and the bank seeking to have the check honored.

It seems that the professor did a good amount of planning near the end of his life, as his Will itself was only signed about two months before his death. This may suggest that the $100,000 check was simply another action taken by the professor near the end to distribute his property according to his wishes.

On the other hand, the Will apparently lays out the professor's wishes in "meticulous detail." This may lead some to question why he would engage in such "off-the-cuff" actions (like writing a $100,000 check) if his other affairs were so neatly organized.

This particular case is an example of the scope of issues that may arise in these matters. Even when the Will is not challenged, as it does not appear to be in this case, ancillary issues (like a large check) may pop up and raise questions about one's actual wishes.

Clarity in Estate Planning - Who Owns Fawcett's Warhol Painting?

December 23, 2013,

Unintended consequences are rampant in do-it-yourself Will creation and other estate planning. Even arrangements that seem simple at first blush may prove to have hidden ambiguities or uncertainties that only come to light during probate--when it is too late to fix.

Partner vs. University
To get an idea of how ambiguity in estate planning can lead to controversy, consider the brewing legal battle between actor Ryan O'Neal and the University of Texas at Austin. The dispute centers on an Andy Warhol painting of actress Farrah Fawcett.

Though they never married, O'Neal and Fawcett were long-time romantic partners. Fawcett died rather young, in 2009. Her possessions were distributed to many different parties, but the single issue in contention here are provisions that all of her artwork be left to the University of Texas. No side disputes that the University should receive her artwork. However, they do disagree on what art was owned by Fawcett and what was owned by O'Neal.

Specifically, the well-known pop artist Andy Warhol painted two identical pictures of Fawcett and gave them to the couple in the 1980s. The University of Texas is already in possession of one of those pieces. However, they are now suing O'Neal to receive the other one. For his part, O'Neal claims that Warhol gave the couple each one of the pieces. Therefore, O'Neal claims that he himself owned one of the paintings, not Fawcett, and so it should not pass to the University.

As discussed in an AP news story, the case went to trial late last month. Expectedly, much of the testimony revolved when the couple received the paintings and what terms were implicit in the transfer of the items from Warhol to the pair. For example, O'Neal's legal team had a former hairdresser of the star explain on the stand that Fawcett told her in 1994 that one of the paintings belonged to O'Neal.

Interestingly, the trial also included dispute about the value of the work. O'Neal claims that a 2009 appraisal had the item pegged at less than $1 million. The University of Texas has their painting insured for $600,000. Yet, at trial testimony from an expert witnesses suggested that each painting was worth upwards of $12 million.

The bottom line: always have the support of an experienced estate planning attorney when doing this work. Experienced professionals can identify possible problem areas from the outset, finding solutions that give you and your family the best chance to settle these matters efficiently and conflict-free when the time comes.

Rock N' Roll Estate Fight - Decades After Death

December 16, 2013,

One of the biggest misconceptions about settling an estate is that all of the loose ends will be handled within weeks or months of the passing. In reality, it often takes years or more before all of the details are finalized. In cases of sizeable wealth, unique assets, or complex administration arrangements, the estate details may linger for decades.

Consider a story in last week's New York Post regarding the estate of former New York Dolls guitarist Johnny Thunders. Thunders was only thirty eight years old when he died in 1991. Yet, even though the death occurred more than 23 years ago, there is a legal estate planning battle brewing over control of his assets.

Thunders Estate Fight
Thunders had little to his name when he died--with an estate valued only at $4,000. Not having a Will, the singer's assets were set to go to his estranged wife, their two children, and a third child from a second mother from Sweden. The singer's sister was named Executor of the estate and she worked on its administration.

Over the years, the sister was quite savvy with the estate management, taking advantage of some re-birth in popularity of New York Dolls songs to generate significant income for the estate. As part of her role as administrator of the estate, the sister made twice yearly payments to the singer's children and wife. These payments lasted for decades until the sister's death in 2009.

It was at that point that another estate battle was put into motion. Originally, the singer's Swedish daughter from outside of his marriage was set to take control of the estate. Yet, the daughter, now 26 years old, could not afford the sizeable bond payment needed to oversee the fund. These bond payments are often required by the court to ensure that the administrator does not abuse their discretion and control of the funds.

Yet, even though the daughter could not afford the bond, no one else was named administrator. The estate funds--around $160,000--have set unused without payment to any of the children. All of this means that no one is around to take advantage of the continued interest in the New York Dolls legacy to capitalize on royalty and licensing funds.

To make matters worse, Thunder's other two children with his wife recently filed a suit seeking to bar their half-sister from ever taking control of the estate. Both sides are set for a court date in January but are hoping to reach a settlement beforehand.

Modifying a Will - Don't Just Scratch Things Off

December 12, 2013,

Our attorneys frequently advise New Yorkers of the immense benefit of using trusts to conduct estate planning instead of relying solely on a Will. More and more residents are recognizing the value of trusts and incorporating them into their planning. However, Wills remain the most well-known and used tool to pass on assets upon death.

There are specific laws which dictate when a Will can be deemed valid by courts in probate. For this reason, it is always prudent to have an attorney draft your Will to ensure it will work as desired when the time comes.

However, even those who have an attorney draft a Will may make the later mistake of trying to modify the WIll on their own, without legal help. This is a significant problem and may result in the entire Will being thrown out. It is not uncommon for an individual's assets to be divided via intestacy rules instead of per their actual wishes in a Will because of modifications made ad hoc.

One common urge may be for a resident to simply take a Will prepared by an attorney and scratch a few names out, write in new names, or change the exact assets that each is to receive. But this is a mistake. Modifications or additions to a Will, often referred to as "codicils," still have to follow the same witnessing, capacity and signature requirements as a new Will. Therefore, making haphazard alternations as a time-saving measure will likely not be upheld.

In fact, considering that most Wills today are created and stored digitally, there is virtually no reason to engage in the complex use of codicils or slight modifications. Instead, most of the time it makes more sense to simply have an attorney help draft a new Will to ensure that all formalities are followed and fewer questions will be asked in probate when the WIll is brought forward.

At the end of the day the takeaway is clear: have the aid of an attorney every time you create a Will or want to update a Will. Holographic Wills--handwritten and unwitnessed documents--generally will not be upheld in New York Probate Court except in very limited situations (like for members of the armed services who are overseas). For this reason, without the counsel of an attorney you always risks having a home-made Will thrown out and rendered ineffective, adding an extra challenge to grieving families at the exact moment that they do not need it.

The Pendergrass Estate and Control of a Legacy

November 26, 2013,

The Times Standard reported on another high-profile estate battle brewing that touches on many common themes, including a divided family and conflicting claims about last wishes.

Legendary R&B singer Teddy Pendergrass is probably best known for his smash hit "If You Don't Know Me By Now." Pendergrass dealt with various challenges throughout his life, including a serious car accident in 1982 that left him a quadriplegic. The accident required him to have around-the-clock care, but he survived and thrived until his death in early 2010.

Family Battle
Unfortunately, there was much discord in the family regarding the distribution of his assets and control of his legacy. The main dispute--as is so often the case--seems to be between Pendergrass's second wife (whom he married in 2008) and the adult children from his first marriage. From the available reports, it seems that only very basic planning was complete, without use of trusts, leaving the situation open for dispute.

According to court records, the singer's adult son claims that a 2009 Will names the son as executor and beneficiary of his father's estate. The singer's wife contests the validity of the Will. At one point the wife argued that she had possession of a "codocil" or addition to the Will which revealed different terms than those in the 2009 original. It is unclear if she is still making that claim.

Regardless, a civil trial in the matter is underway now, and it seems that the wife is contesting the validity of the 2009 Will entirely. One interesting claim suggests that the singer was physically not able to sign the legal document as claimed. A long-time nurse of the man explained last week at trial that the singer could not hold anything himself after the accident and required aid for even the most basic tasks. She testified that she did not believe his motor skills allowed him to sign his name or make initials on paper. In addition, there was confusion about how the singer could have left the home at the time that the Will was supposedly signed without caregivers knowing about it.

Both sides concede that they are concerned about the long-term legacy of the singer. Beyond the physical assets and bank accounts, control of an estate also includes the ability to dictate how the singer's legacy is handled, including future use and licensing of the famous name.

It is impossible to predict how a court will rule in this case. Any time an estate battle goes to trial, there are unknowns which can sway the matter either way. That is why everything should be done ahead of time to avoid legal disputes, dispensing with the matter efficiently and quickly. An estate planning attorney can help ensure you have details in place to avoid conflict.

WSJ on Last Minute Will Changes

November 22, 2013,

A Will is far more likely to be challenged during probate if significant last-minute changes were made to the legal document. This is to be expected considering that the main causes for challenge--undue influence, lack of capacity, improper procedure--are far more likely to occur when an individual is older and nearing death.

But that does not mean that all Will changes should be avoided later in life. Often is is essential to make changes to reflect one true wishes and best protect assets. It is simply critical to made those changes carefully and with an eye toward the ways to minimizing the risk of a Will contest.

Act Prudently with Deathbed Changes
A Wall Street Journal story last week discussed these risks, noting that it is only when death is near that many suddenly have a clearer idea of how they want their legacy to live on. They often seek to change their Will to reflect that new vision. But without accounting for the risks of deathbed revisions, this may open the door for prolonged court battles.

For one thing, it is critical to have the aide of a neutral party to actually draft the last-minute revisions. That is because the appearance of undue influence or even fraud are higher when the changes are managed by a family member or other party who is benefitting from any late change. History is littered with cases of Wills which are thrown out because last-minute changes benefited new parties who were not recognized in previous versions. These changes may very well be motivated by good intentions and reflect the true wishes of the testator. But never forget that when planning defensively, the only thing that matters is what can be proven later on, not simply was is true at the time.

Similarly, health issues must be accounted for if the senior suffers from dementia, Alzheimers, had a stroke or otherwise may lack capacity to make the change. At those times, it may be worthwhile to have a mental competency examination performed and documented so that later attempts to challenge capacity can be defeated with real evidence of the individual's mental health.

Of course, do not forget that other tools exists beyond a Will, like trusts, which can offer superior flexibility and protection without many of the risks for challenge and feuding. Trusts are useful for families throughout New York with many different levels of wealth. Consider contacting an estate planning attorney to learn more about your options.