Articles Posted in Blended Families Estate Planning

The more assets that are at stake following a passing, the higher the risk that others might pursue all available means to get a piece of the pie–even if it completely contravenes the original wishes of the former owner. Estate planning fills the gap by closing as many opportunities for subsequent legal challenge as possible. Sadly, in many cases, even when some planning is done ahead of time, outsiders may attempt to find any loophole possible to upset the original plan.

That seems to be what happened with the estate of music legend James Brown. Brown died over four years ago from heart failure, but the final resolution of his assets remains in limbo with a potentially long future ahead. That is because the Huffington Post is now reporting that the state’s supreme court recently rejected a compromise that was two years earlier between various parties.

The Backstory

One common excuse for putting off basic estate planning is the assumption that others–spouse, children, siblings, close friends–already know exactly what you want, and so there is little need to go through the legal hoops to solidify it. Sadly, in the aftermath of a passing, there is no way to know exactly what those in control of a situation might do unless there is legal backing to it. That obviously applies with distribution of property, but it also applies to more ceremonial aspects to a passing, like funeral and burial wishes.

Don’t Leave it to Chance

For many, their faith dictates how they chose to have their passing honored (or not honored). From deciding what to do with remains or where to be buried, it is critical that desires be set forth clearly. It is a mistake to underestimate the significance of these details or the in-fighting that may bubble up where there is disagreement about how to handle these matters.

A Reuters story late last week suggested that while estate planning feuds of the famous usually involve millions, the principle issues are the same as those faced by all local residents. Every case must be evaluated individually, but the same main issues are found again and again. That is why our New York estate planning lawyers urge residents to visit with experienced professionals when making preparations because they have likely seen similar issues in the past and can help anticipate problems that might come up down the road. As this latest story explained “anyone thinking about wealth transfer faces the same issues: dysfunctional families, potentially unequal positions in the family business, perhaps multiple marriages with kids from each.” This applies whether one has $50,000 or $50 million.

For example, second marriages often create planning problems. When crafting an estate plan, one must balance the needs of the second spouse with the children of the first marriage. If one doesn’t do it, as the author notes, “you’re basically buying a litigation case.” For example, the longest estate litigation case of the last century was that of Anna Nicole Smith. She was a second wife of a billionaire investor. The children from the man’s first marriage engaged in a prolonged battle to ensure that Ms. Smith did not receive any substantial portion of the man’s wealth. The case was still not resolved with Ms. Smith herself passed away.

Family businesses also present common issues for those in all income brackets. Much family wealth is wrapped up in a business. Often some of the children participate in the business while others do not. This often creates significant estate planning issues regarding who gets what share of the business. One of the most well-known examples of this is that of the Koch family in New York. The patriarch had created a fortune after developing a new cracking method in oil refinement. However, upon his death the man’s four sons engaged in a prolonged legal dispute over control of the business. As the article notes, “there are a lot of ticking time bombs in family businesses that creates litigation.”

Most local residents will nod in agreement when one explains the importance of conducting New York estate planning as soon as possible. It is easy for most to understand the value of planning an inheritance, saving on taxes, and preparing for alternative decision makers. Yet, all estate planning lawyers know that there is a difference between recognizing the importance of a task and actually taking the time to get it done. Psychologists have found that when it comes to making the leap from knowing that a task should be completed to actually doing it, personal examples are usually the most effective motivators. It is one thing to learn about the value of planning, it is another to hear about a specific case of proper planning that helped an actual person. In fact, experts have also found that even more effective than stories of positive benefits are stories of plans gone awry. The stick is often more persuasive than the carrot.

That is where the estate planning misadventures of the rich and famous can be useful. Unfortunately, recent history is replete with stories of many well-known figures who did not take care of their affairs properly (or at all) before their passing. This week the SM Mirror ran down a quick list of some of the more well-known cases of celebrity estate planning blunders. A few included examples:

Jimi Hendrix

Estate planning is about setting ones affairs in order for the benefit of friends and family. In that way, the holiday season is a natural time to discuss these matters, because it is now when many families are getting together and celebrating. Particularly for families that do not live close together, this time of the year may be the only one when everyone is all in one place. For those in our area, it may be an ideal time for adult children to sit with parents and siblings to talk about creating or updating their New York estate plan.

Of course, one need not spend time delving into the specific details of a plan over turkey dinner, but simply mentioning the topic lightly can be important. As a recent article in The Gazette suggested, if parents do not seem willing to get into the details during the holiday, adult children should simply explain that they’d like to discuss the subject at a later time. However, if parents seem receptive, it is helpful to ask them some basic questions. For example, some parents may already have wills drafted. If so, it is important for other family members to know where it is located and how to access it. If a will is used, children should ask who has been named executor. The same is true when more advanced tools like trusts are used, where successor trustees have to be named. Our New York estate planning attorneys know these seemingly simple choices come loaded with problems. Discussing them ahead of time, when everyone is together, is often a good approach. For example, choosing one child over another for either of these duties may create hard feelings.

Beyond subtle prompting to get certain estate planning affairs clear, the holidays may also be a good time for parents to share exactly how certain sentimental objects will be distributed. Of course, the holiday gathering may be inappropriate if it is known that certain decisions will cause family discord. However, it is never a good idea for family members to learn who is set to receive certain objects only after a loved one has passed, particularly items with emotional attachments. Because everyone is together the holidays may be the ideal time for grandparents to clearly explain what steps they’ve taken and to answer any questions that family members may have. The input that the elders receive from family members may also prove helpful in case something has been left out of planning. At times adult children can remind parents of certain assets or family issues that should be incorporated in estate planning documents that had originally been left out.

Last month Forbes discussed an estate feud that brewed followed the suicide death of a reality show star. Late this summer, the 47-year old star of “Real Housewives of Beverly Hills,” Russell Armstrong, took his own life. His wife, Taylor Armstrong, had filed for divorce shortly before the death. However, the divorce was not final at the time of Mr. Armstrong’s passing, meaning that per the rules of the state she was the next of kin. As such she maintained a certain level of control over his affairs–including his funeral and burial plans. Without instructions to the contrary in estate planning documents, even estranged spouses may maintain this control.

Making matters worse in this situation, it appears that Mrs. Armstrong never maintained a good relationship with her former husband’s family. As a result, she did not initially tell the family about the funeral, burial, or memorial plans. The man’s parents and siblings wanted his remains buried in his home state of Texas, but Mrs. Armstrong claimed that she wanted to bury him in Los Angeles. It remains unclear exactly how the ugly situation will be resolved.

Unfortunately, the burial dispute may be just the beginning. Depending on Mr. Armstrong’s estate planning documents, his estranged wife may still be entitled to inherit most of his assets. That is why it is important to seek out professional help in the middle of a divorce. Otherwise, there is no telling what might happen. As the article notes, “Fights over the estate of someone who passed away in the midst of a divorce are especially common.” Other recent high-profile examples include the deaths’ of Dennis Hopper and Gary Coleman.

This weekend the New York Times reported on the sad legal battles of 94-year-old actress and Broadway star, Celeste Holm. Ms. Holm gained famed as a leading film actress in the 1940s, starring in All About Eve and winning an Oscar for her performance in Gentleman’s Agreement. Now, however, Ms. Holm is making headlines for her 5-year legal battle with her sons over her estate. The story notes the potential for drama surrounded a New York inheritance and, as the author writes, is “a cautionary tale for families trying to manage one of our age’s emblematic conflicts, between elderly parents who want to live autonomously and adult children who want to protect them.”

The trouble for the family began when Ms. Holm (then 87 years old) began dating a man who was 46 years younger. When the man moved into Ms. Holm’s large Central Park West apartment her two sons became worried that the relationship would have ramifications on their inheritance. Shortly after, Ms. Holm’s son transferred her investments and apartment into limited partnerships and then arranged for the partnerships to be held in an irrevocable trust, naming himself as the trustee. The trust was scheduled to pay Ms. Holm $300,000 a year to cover her expenses.

These living trusts are popular legal entities than help families transfer assets at death while avoiding the time and expense of probate proceedings. However, it is imperative that the decisions are made in good-faith with the consent of those involved. That is where Ms. Holm’s family situation went awry. Following a family meltdown over the relationship with the younger man, Ms. Holm sued her son to overturn the irrevocable trust. The legal battle eventually lasted five years and consumed millions of dollars–taken from the very estate that was at issue. The two parties eventually settled, but the expenses of the fight had placed Ms. Holm in a tough financial situation. Ms. Holm and her now-husband remain in debt and they are unsure if they will be forced to move out of their apartment.
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A common provision in wills and trusts, where one of the couple in a second marriage owns the marital home, goes something like this “My surviving spouse shall have the right to reside in the home for so long as he/she desires, provided he/she pays all taxes and insurance premiums thereon and shall maintain the premises in good order and repair. Upon his/her vacating the premises, the same shall be sold and the net sale proceeds distributed to my children in equal shares, per stirpes.”

Sounds fair, doesn’t it? After all, the surviving husband or wife gets to live in the house as long as they like, rent-free, subject only to payment of the carrying charges. In practice, however, the plan carries a significant defect. It puts the surviving spouse in a “Catch 22”. If they find the house is too large, too difficult or too expensive to maintain they have the choice to leave, but then face the prospect of a significant expense to purchase another residence out of their own funds or, in the alternative, the cost of rental which may add thousands of dollars in monthly outlay.

For this reason, we recommend that the surviving spouse gets not only the use and enjoyment of the home for life, but also the use and enjoyment of the proceeds of sale of the home for life, to either purchase a smaller home or condo or use the income from the sale of the home to pay for a rental apartment. In our view, the children of the previous marriage lose nothing. The surviving spouse could have lived in the house for life so why not give him or her the flexibility to trade down as they get older? If there are excess sale proceeds, these can be invested to provide additional income to the surviving spouse. The co-trustee, perhaps the attorney as previously suggested in these pages, makes sure the funds stay intact for the deceased spouse’s children after the second spouse dies.

Pioneered by Ettinger Law Firm, the IRA Contract solves a technical problem that arises when a spouse in a second marriage wishes to leave their IRA, or other qualified plan, to the husband or wife but also wants the unused funds to go to their children from a previous marriage after the spouse dies.

Many lawyers recommend a trust for this purpose. For example, husband dies and leaves the IRA to a trust which names the wife as beneficiary for her lifetime and, after her death, to his children from the previous marriage. Although leaving an IRA to a trust is perfectly legitimate and solves the problem, it has one major drawback. Since a trust has no “life expectancy” on which the IRS can calculate the required minimum distribution (RMD), when you leave an IRA to a trust, the Service looks through the trust to find the oldest trust beneficiary. They then calculate the RMD based on the life expectancy of that person, usually the second wife. The first issue is that even if the wife is under 70 1/2, the age at which you are required to start withdrawals, she cannot wait until then. Since the IRA was left to a trust, it is not a spousal rollover and does not become the wife’s IRA. As such, she cannot defer taxes until 70 1/2 but must start withdrawing the year following her husband’s death. The larger problem is that the IRS will establish a “term certain” for the payout based on her life expectancy which may be two decades or more less than the husband’s children. In other words, when she dies, his children must continue to withdraw based on her life expectancy, instead of based on their own life expectancies. Two decades or more of deferred taxes on the IRA are lost.

To solve this problem, we prepare a fairly simple contract. Wife agrees, in consideration of husband’s naming her as beneficiary on his IRA, to name husband’s children irrevocably as her beneficiary when the IRA rolls over to her. She also agrees not to take any more than the RMD, except on consent of the attorneys appointed by the husband. This prevents someone perhaps unduly influencing the wife in her later years to simply withdraw all the funds and give them to her children or others.

By Michael Ettinger, Esq.lawyer-as-trustee.gif

One of the situations that call for the lawyer to recommend himself as trustee is in second marriage planning.

It is a firmly established legal principal that there is no ethical prohibition against the attorney recommending himself to act as a trustee on behalf of a client or client’s estate. And for good reason. In many situations the counselor can provide invaluable assistance that no one else is able or willing to provide.

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