Probate Law News

Probate Law News
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By Martin Low

July 15

Lawyer offers legal guide to aging

United Press International
7/13/2010

TUCSON, July 13 (UPI) -- A U.S. lawyer has prepared a book and videos on avoiding pitfalls of aging to help those who don't know the difference between a living trust and a living will.

Kenney F. Hegland of the University of Arizona says everyone is likely to make serious, expensive and heartbreaking mistakes unless problems are anticipated.

The video segments, on topics such as raising grandchildren, sex, identifying elder abuse and other issues involving aging are at http://www.heglandlaw.com and are free. There is occasional poetry and humor, also free.

Other topics at the Web site include: Avoiding probate; wills; trusts; home care for the elderly; identity theft and scams; driving; advance healthcare directives; dealing with doctors and finding lawyers; disability in the family; legal capacity; deciding for those who can't; death in the family; disgruntled heirs; remarriage. These are available at $2.67 each.

"When I started teaching elder law, I was shocked on how many of life's problems can be avoided or dealt with successfully. Every day I hear stories of families torn apart, trying to cope with a tangle of heart-wrenching problems," Hegland says in a statement. "Like so many of us, they assumed that tomorrow would be like today. It won't be. With the information provided in the book or on the Web site, seniors and their families will, quite simply, lead happier, less stressful lives."

6:26 PM GMT | Read comments(0)

Five years later, cruise ship disappearance leaves unresolved issues

CT Post
7/6/2010
Debra Friedman

Five years after a Greenwich man disappeared while on a Royal Caribbean honeymoon cruise, the legal battle surrounding his estate wages on in state Superior Court in Stamford with a court trial looming this fall.

Attorney Michael Jones, who represents the family of George Smith IV, said his clients are continuing to participate in settlement talks with Smith's widow, but a trial date is slated for October if an agreement can not be reached.

"There have been some settlement discussions and they are on-going," Jones said. "Those discussions have included Royal Caribbean."

In April, a judge postponed the Smith trial giving the parties until the fall to continue talking.

Attorney Richard Sheeley, who represents Smith's widow, Jennifer Hagel Smith, said all parties are working towards resolving the case.

"All the parties involved are pushing for the conclusion of this matter in the best interest of the estate and in the best interest of George's memory," Sheeley said.

Smith, who planned on taking over his father's Cos Cob Liquor Store, disappeared July 5, 2005, into the Aegean Sea while on a cruise of the Mediterranean. His body, which left bloodstains on an exterior overhang of the ship, was never found.

In 2008, Smith's parents filed a lawsuit in state Superior Court in Stamford contesting a Greenwich probate court approval of a $1.1 million settlement their former daughter-in-law reached with Royal Caribbean International.

The lawsuit states that Hagel Smith's judgment was clouded when she accepted the settlement, which they believed falls short of Smith's earning capacity. The lawsuit stated Smith's earning capacity was at least $2.4 million. They are seeking to usurp Hagel Smith's authority over their late son's estate.

However, in the course of the legal battle, Hagel Smith has alleged in court documents that the Smith family has failed to consider that Smith's use of alcohol prescription drugs could have been a factor in an accidental death.

Jones has said there was no evidence Smith was using prescription drugs or alcohol. Last summer Hagel Smith's father said his daughter planned to marry a financial analyst. It is not clear if a wedding has taken place.

Smith's 2005 disappearance sparked intense media attention over what happened to the newlywed. The cruise line has said that guests heard a loud thump about the time Smith went missing. Hagel Smith was found asleep in a corridor on the other side of the ship. The couple had been spotted partying and drinking that night. The FBI has also investigated the case, but little information has been released. There has never been a definitive ruling about whether foul play was involved in Smith's disappearance.

Jones said the family has never been told that the case is closed.

While the criminal and civil aspects of the case remain pending, however, a landmark piece of legislation that would strengthen security on cruise ships in international waters recently passed the U.S. Senate.

The Smith family had been pushing for tighter cruise-line safety regulations ever since Smith vanished. Last month, Bree Smith, George Smith's sister, said the legislation will give vacationers protection her brother never had.

In the past few weeks the government has been reconciling differences between the House of Representative's and Senate bills. After that, the bill will go to the president for his signature.

Jones said the Smith family has taken some solace in their efforts working to reform legislation as they continue to seek justice for George Smith.

"If nothing else comes from the work they've done, my clients should be very proud of their actions vis-a-vis the cruise line industry, which has resulted in a monumental piece of legislation being passed," Jones said. "It is a tribute to George's legacy."

6:25 PM GMT | Read comments(0)

How can sons get their fair share of estate

Houston Chronicle
7/4/2010
Ronald Lipman

Q: My adult sons will inherit half the estate of my deceased husband's mother when she dies. The problem is that the other beneficiary is my deceased husband's sister, and she is named as the executor. I don't trust her to give my sons their rightful share. What can they do to make sure they get their half? Does any court oversee the distribution? All of them live in Texas.

A: If your former mother-in-law's will is probated like most other wills in Texas, then your sister-in-law will be serving as an "independent" executor, meaning she will serve without court supervision. The court will not be watching over her actions as executor.

Your sons would need to stay after her to make sure she does her job within a reasonable time.

If your sister-in-law neglects her duties as executor or acts improperly, then your sons should hire an attorney to represent their interests.

Keep in mind that your sister-in-law may already be taking steps to increase her inheritance. She may have had her mother change bank accounts, retirement accounts, and life insurance so that they pass directly to her, not under the will. Actions like these will make it very hard for your sons to claim what you refer to as their rightful share.

Q: My brother-in-law died suddenly and didn't leave a will. What is the process for getting money from his bank accounts?

A: If your brother-in-law owned nothing more than a home, personal property, and accounts valued under $50,000, there's a good chance you can get to the bank accounts and other assets by filing a Small Estate Affidavit with the local probate court.

If his estate was larger, a more complicated probate proceeding will be needed. Without more information, however, it's impossible to say for certain what you should do.

It would be best to meet with an attorney to determine your best course of action.

Q: My wife and I are 62 and 65 years old, respectively, and have wondered whether or not a living trust would be suitable for us. Our total assets are just under $1 million, about one-third of it in real property and two-thirds in stock market investments. I have health issues and can't qualify for long-term care insurance, and I am concerned that, without protection, any long-term care would seriously erode our net worth. Is a living trust a good way to protect our assets in the event of long-term care needs?

A: A living trust is not the way to protect your assets.

If you want to set up your estate in order to qualify for all the government benefits possible, you should meet with an elder law attorney to discuss the options that are available to you.

You can locate an elder lawyer by typing "elder lawyer Houston" into the search field of your preferred Web browser, or you can find one at www.nelf.org or www.naela.com.

You should also consider meeting with a financial planner to discuss other insurance options aside from the standard long-term care policy.

6:23 PM GMT | Read comments(0)

Growing number of seniors are victims of financial abuse

The Baltimore Sun
7/4/2010
Eileen Ambrose

As a wills and estate lawyer in Toronto, Les Kotzer has heard it all — and it's not often pretty.

Take the story of an ailing, elderly woman who relied on a daughter's caregiving to avoid going to a nursing home. The child threatened to withhold care unless the mother's house was bequeathed to the daughter in a will. The daughter even drove her to a lawyer's office to have the document drawn up.

But the mother told Kotzer she got her revenge. When the daughter left for a vacation, the mother called the lawyer to the house to secretly execute a new will that disinherits the child.

"I was shocked [the mother] would have to go to this length," says Kotzer, co-author of "Where There's An Inheritance," which contains families' stories and advice on how to avoid estate fights. Less surprising, Kotzer says, is that the child was the bad apple.

"The financial abuser is often a family member," he says.

Financial exploitation of the elderly can take all forms, and firm figures aren't available. A 2009 MetLife study estimated that the number of victims nationwide could be as high as 1 million a year, with losses amounting to at least $2.6 billion annually. Victims tend to be women in their 70s and 80s who are trusting, cognitively impaired or isolated, the study found.

The problem is only expected to grow, given our aging population and the fact that older adults control the bulk of wealth in this country, making them a target.

Granted, plenty of families act in the best interest of their oldest members. Still, most financial exploitation is perpetrated by a relative, with an adult child being the culprit one-third of the time, according to the National Center on Elder Abuse.

"It's more common that we like to admit, mostly because it's hidden," says Michael W. Davis, an estate planning lawyer in Columbia. "Who is going to complain to whom? That becomes the problem."

Some children outright steal from parents. Others "borrow" money with the intention of repaying parents but never do. Or children feel entitled to funds they expect to inherit later. "Some just can't wait," Davis says.

New efforts are under way to combat financial abuse of the elderly.

The nonprofit Investor Protection Trust announced a campaign last month aimed at helping physicians identify financial fraud among older patients — particularly those with cognitive impairment — and then refer those cases to authorities.

A new Maryland law taking effect in October will strengthen protections for those creating powers of attorney, a document naming an agent to make financial and other decisions on your behalf. Starting in October, the document must be signed before two witnesses and notarized — a standard not required presently, says Richard Wright, an estate planning lawyer in Annapolis.

The new law will also allow heirs, government agencies and others with an interest in the elderly person's welfare to ask the court to require that the agent account for how he or she is handling affairs, Wright says.

Of course, much more needs to be done to safeguard seniors. And older adults should consider these steps to make themselves less vulnerable:

Choose a trustworthy agent: Never be pressured into giving power of attorney over your affairs to anyone. But if you do want this document, choose an agent with care.

Avoid anyone with debt troubles or addictions who might be tempted to pilfer your money to solve his or her problems. Parents usually choose a child but sometimes might be better off with another trusted relative or close friend, lawyers say.

Or consider naming more than one agent to act as a check-and-balance on each other, Kotzer suggests.

Maintain control of assets: Sometimes older adults land in trouble trying to avoid probate, the process where the title of a deceased's assets are transferred to beneficiaries. (Probate for most estates in Maryland is less onerous and expensive than in other states, lawyers note.)

As an example of how things can go wrong, Kotzer tells the story of a woman whose children persuaded her to turn ownership of her assets over to them to bypass probate. They promised to pay her an allowance. But it was so stingy that she barely had enough to live on, and her children berated her if she asked for more, he says.

6:19 PM GMT | Read comments(0)

The Estate Tax’s Perverse Incentives

The New York Times
7/15/2010
Stephen J. Dubner

If you do not think it’s a good idea for someone to have to accelerate or delay his or her death due to changing tax laws, then you cannot be very pleased about the back-and-forthing on the estate-tax law in the U.S.

Here’s how we laid it out in SuperFreakonomics:

In the United States, the rate in recent years was 45 percent, with an exemption for the first $2 million. In 2009, however, the exemption jumped to $3.5 million — which meant that the heirs of a rich, dying parent had about 1.5 million reasons to console themselves if said parent died on the first day of 2009 rather than the last day of 2008. With this incentive, it’s not hard to imagine such heirs giving their parent the best medical care money could buy, at least through the end of the year. Indeed, two Australian scholars found that when their nation abolished its inheritance tax in 1979, a disproportionately high number of people died in the week after the abolition as compared with the week before.

For a time, it looked as if the U.S. estate tax would be temporarily abolished for one year, in 2010. (This was the product of a bipartisan hissy fit in Washington, which, as of this writing, appears to have been resolved.) If the tax had been suspended, a parent worth $100 million who died in 2010 could have passed along all $100 million to his or her heirs. But, with a scheduled resumption of the tax in 2011, such heirs would have surrendered more than $40 million if their parent had the temerity to die even one day too late. Perhaps the bickering politicians decided to smooth out the tax law when they realized how many assisted suicides they might have been responsible for during the waning weeks of 2010.

Well, as it turns out, the bickering politicians haven’t smoothed things out. The estate tax was abolished for 2010 and, as this excellent Wall Street Journal article makes clear, there’s a good chance the law will return next year at an even higher rate and with a lower cap. Highlights:

If Congress doesn’t change the law soon — and many experts think it won’t — the estate tax will come roaring back in 2011. Not only will the top rate jump to 55%, but the exemption will shrink from $3.5 million per individual in 2009 to just $1 million in 2011, potentially affecting eight times as many taxpayers. The math is ugly: On a $5 million estate, the tax consequence of dying a minute after midnight on Jan. 1, 2011 rather than two minutes earlier could be more than $2 million; on a $15 million estate, the difference could be about $8 million. …

Advisers say the estate-tax dilemma is especially awkward for heirs. “At least in December 2009, people wanted to keep their relatives alive,” says Ronald Aucutt, an estate-tax attorney with McGuire Woods in the Washington area. Now he and others are worried that heirs may be tempted to pull plugs on Dec. 31. Economists might call the taking of a life to reap a tax advantage a “perverse incentive.” District attorneys might call it homicide.

10:04 AM GMT | Read comments(0)

New Case Management Technology for Probate Courts

CIO
6/28/2010

County Business Systems, Inc. has served government offices and commercial businesses for more than 40 years developing and integrating solutions that improve manual business processes. The deployment of Bluestone, a new information software solution that enables probate courts to affordably utilize the latest automation technology, was a natural progression. Now, in addition to offering information management solutions, County Business Systems will provide Probate Courts with the most comprehensive case management and automation solution, built to simplify the complex business issues involved in processing and cashiering.

Typically, staff from each Surrogate Court in New Jersey inputs case information into multiple systems for each adoption, guardianship, estate, minor account and trust fund they govern. In some cases the same information resides in three and at times four different databases that do not communicate with one another. There is no watchdog making sure that all databases are updated with current and correct information, and valuable time is wasted manually keying in data.

County Business Systems will provide Probate Courts with the most comprehensive case management and automation solution, built to simplify the complex business issues involved in case processing and cashiering. With Bluestone, Probate Court offices can create forms and workflows as well as access and edit records on the fly within one turnkey system. Bluestone is the only solution for Probate Courts to integrate functions for calendaring, accounting & cashiering, state reporting and records retention scheduling for guardianships, minor accounts, incapacitated accounts, child adoptions and escrow. As a result, Probate offices can reconcile with banks for each interest report for these accounts. Counties managing millions of dollars in trust funds will gain tremendous value through the Bluestone solution.

The Bluestone probate solution is currently deployed in five Surrogates' offices throughout large and small counties in New Jersey, including Camden, Bergen, Monmouth, Salem and Gloucester counties. County Business Systems’ goal is to provide access to a comprehensive, robust, and practical solution that will help courts maximize government dollars while meeting the needs of their citizens.

For more additional information on the news that is the subject of this release (or for a demo) visit the CBS website: http://cbs-nj.com.

10:02 AM GMT | Read comments(0)

From the probate files: Elderly widow wants her money back

Arizona Central
6/25/2010
Laurie Roberts

Attorneys for an 88-year-old widow left penniless by her trip through Maricopa County's probate court are asking that the old lady's money be returned until a new trial is held – one presided over by a judge who doesn't play favorites.

In their 70-page motion, attorneys for Marie Long lay out a pattern of treatment in which Commissioner Lindsay Ellis sided with and even lauded the attorneys and fiduciaries who wound up with all of the widow's money while ignoring requests from the attorneys who were trying to protect her assets as they dwindled to nothing.

The pattern of “blatant partiality, bias and hostility” culminated in Ellis giving a highly improper heads-up to the favored attorneys this spring, sending them an advance copy of her ruling that approved hundreds of thousands of dollars in fees they collected from Marie and lambasted the old lady's legal team.

But their motion for a new trial goes beyond her eye popper of a case and calls into question that coziest of probate practices, the one that allows lawyers and fiduciaries to collect fees first and seek approval (which they virtually always get) later.

“It is a long-standing practice that invites unfettered financial abuse of the incapacitated, incompetent and the elderly,” Marie's attorneys wrote. “This practice must stop.”

Marie was worth $1.3 million when she suffered a stroke in 2005 and came under the protection of probate court. Today, she's destitute and depends on taxpayers for support.

Attorneys for those handling Marie's money and overseeing her care have blamed her lawyer Jon Kitchel, along with Pat Gitre and Dan Raynak, the lawyers for her sisters, for the run-up in fees, saying their repeated, unreasonable objections drove up bills.

Funny, though, it only drove them up on one side. Of the nearly $900,000 in attorney and guardian/care fees drained from Marie's bank account, Kitchel collected $15,000 for five years of work. Gitre and Raynak, who is the son-in-law of one of Marie's sisters, worked for free. By comparison, the law firms that have employed Brenda Church -- the attorney for the trustee who handled Marie's money until there was nothing left to handle, and one of the favored lawyers who received and even responded to Ellis' “ex-parte” communication -- collected more than $330,000 of the old lady's money.

Superior Court Judge Robert Budoff has been assigned to determine whether Ellis was biased and if so, whether her rulings should be tossed.

Ellis' attorney, Kevin O'Malley, didn't return a call. He contends Ellis has judicial immunity.
In their motion, Kitchel and Gitre are asking that the money be returned to Marie until a new judge determines how much she should pay for all this probate protection, noting that she “may not live through the resolution of this dispute.”

They lay out the ways in which they believe Marie was stripped of her constitutional rights as Ellis bent over backwards to favor the Sun Valley Group, which served as Marie's guardian, and a set of lawyers who often work together on probate cases. In addition to Ellis' unethical communication with them:

-- Ellis had no problem allowing Sun Valley to not only to direct Marie's non-medical care but to hire itself to provide it, despite a Supreme Court rule that bars guardians from “self dealing or the appearance of a conflict of interest.” As a result, Sun Valley collected nearly $183,000 in guardian fees and another $235,000 in care fees.

-- Ellis refused to consider whether Sun Valley and various attorneys breached their fiduciary duty to Marie, advising her lawyers to file a civil lawsuit if they wanted to make that claim. Then, when they did, she threw out the suit, contending they lacked authority to file it. She would later criticize them for filing the lawsuit, calling it “unexpected and intimidating.”

--Ellis declined to act on a series of increasingly urgent pleas to stop the six-figure fees that were bleeding Marie dry. In November 2008, Kitchel began peppering Ellis with motions asking her to come to Marie's aide. By spring, he was begging for an emergency hearing, warning that Marie was headed toward welfare.

Ellis never did consider Marie's petitions to remove the peoples who were bleeding her dry. Instead, she held a hearing on the bleeders' requests that she approve their fees. (She did.) She would later, in a hearing last December, explain her decision to hear the fee requests rather than Marie's pleas, saying it was “more appropriate and practical” to resolve the money issues first. “And in fact that worked because then the resignation of the trustee and those additional removal petitions did not have to be the subject of contested hearings.”

She's right about that. They resigned without the need for a contested hearing.

Of course, Marie was, by then, broke.

10:01 AM GMT | Read comments(0)

Massachusetts Probate and Family Court Judge Lied About Campaign Contributions

Boston Herald
7/1/2010
Laura Crimaldi

The Governor’s Council yesterday delayed a vote on an Arlington attorney nominated by Gov. Deval Patrick for the Middlesex Probate and Family Court after two councilors accused the lawyer of lying about political contributions to politicians who have run afoul of the law.

The councilors said David Aptaker, 56, did not disclose contributions to former state Sen. James Marzilli (D-Arlington) and former Middlesex County Register of Probate John R. Buonomo on his judicial nominee answer form. They also said Aptaker claimed donations of $100 each to the Senate and presidential campaigns of U.S. Rep. Michael Capuano (D-Somerville) and Barack Obama, respectively, that were never made.

“No one wants a liar on the bench,” said Councilor Mary-Ellen Manning, who was joined by Councilor Marilyn M. Petitto Devaney in opposition to Aptaker’s appointment.

Aptaker, of Arlington, did not attend yesterday’s meeting, but appeared before the council last week for a hearing. He did not return messages left at his Somerville law office, and no one answered the door at his home.

State law requires judicial nominees to disclose their political donations from the past three years.

State Office of Campaign & Political Finance reports show Aptaker gave Buonomo $550 from 2006 to 2008. The same records show he donated $200 to Marzilli in 2007.

Buonomo is serving a 30-month jail sentence for stealing from campaign funds and copier machines at the Middlesex Registry of Deeds. Marzilli faces charges he made indecent sexual advances to four women in 2008.

The Federal Election Commission’s online database shows no record of donations to Capuano or Obama from Aptaker.

“Never has anyone put in names of people who they contributed to when they didn’t,” Devaney said. “That’s really absurd.”

Other councilors accused Manning and Devaney of maligning Aptaker in a last-minute maneuver.

“I think it’s particularly unfair and inappropriate for someone like Mr. Aptaker . . . to be sandbagged the way he has been today,” said Councilor Thomas T. Merrigan.

Lt. Gov. Timothy Murray, who chairs the council, said the issue should have been raised earlier.

“There’s a time and a place to bring it up and it’s not here at the 11th hour,” he said.

Aptaker goes back before the council on July 14, when councilors are expected to make a decision.

9:58 AM GMT | Read comments(0)

Parents own their home and kids need cash -- time for a reverse mortgage?

The Wall Street Journal MarketWatch
7/2/2010
Lew Sichelman

Question: My parents are 83 and 88 years old and live in a home that is paid for in full. They are considering a reverse mortgage because we children need the funds now. Can you please advise us how to go about this, and the pros and cons?

Here are a few questions to start: Will our parents be taxed? Can they give funds to their children as a gift, and would we be taxed? How does a reverse mortgage affect getting Medicare later on with no equity? Or better said, how would this affect them if they need to go into a care facility?

Answer: These are complex questions, the answers to which will depend on a number of details, facts and circumstances. Consequently, you should consult an elder-law expert for advice specific to your situation. In the meantime, here's some general information for you to chew on.

For starters, the funds drawn from a reverse mortgage are not income. Rather, they are loan advances, so they are not taxable as income. But the normal gift-tax treatment and limitations would be in effect for any funds drawn from a reverse mortgage and then gifted to children.

Next, a reverse mortgage has no impact on Medicare. Medicare is an insurance program, which is not a means-tested program. Medicaid is a means-tested program, however, and a build-up of funds from a reverse mortgage in a bank account could affect your folks' eligibility. The eligibility rules for Medicaid vary from state to state.

If you or your parents are trying to game the system by looking for a way to draw down the equity in their home via a home equity conversion mortgage (another name for a reverse mortgage), distribute the money to the kids, then appear to be impoverished enough to qualify for Medicaid, be forewarned that there are laws on the books to prevent that. You wouldn't be the first to be caught with your hands in the cookie jar.

However, if you and your mom and dad are legitimately hoping to spend some of their equity for real needs -- as opposed to just getting it out of the estate before they pass -- then it shouldn't have an impact on eligibility for Medicaid. But once again, this would be subject to state laws.

Generally, the rule is this: If funds come in monthly and are spent, they should not affect eligibility. If funds are placed into a bank or checking account and sit there, that asset -- the cash in the bank -- might disqualify them.

9:37 AM GMT | Read comments(0)

A primer on probate: Here's what to expect

Houston Chronicle
6/27/2010
Ronald Lipman

Probate is the process of establishing in court that a person's will is valid and must be recognized to transfer property.

Step one with probate is filing an application at the courthouse along with the original will. What the application needs to say is spelled out in Texas Probate Code Section 81, which you can find at www.capitol.state.tx.us. Click on statutes, then select the Probate Code, Chapter V, and Section 81.

Sometime after a 10-day mandatory waiting period, a probate hearing is held. Typically your lawyer schedules this hearing, although some courts assign a date and time. In larger counties, the hearings are held in a crowded courtroom. In smaller counties, the hearings are sometimes held right in the judge's office.

At the hearing, a witness is required to give testimony regarding facts about the person who died. The testimony is typically written before the hearing by your lawyer, who then recites the facts to the witness. The witness's job is to confirm that the facts are true. Usually, the judge will then sign an order admitting the will to probate. The order is a document your lawyer will have prepared before the hearing.

After the hearing, the executor must sign a document called an Oath stating that he or she will do everything required of an executor. Exactly what that entails, though, depends on what the estate owns. Once the Oath is filed, the executor can order Letters Testamentary, which authorize the executor to close bank accounts, sell estate properties and other- wise administer the estate's assets.

The executor must publish a notice in a local newspaper telling creditors where they can file claims to recover money they may be owed by the estate. Texas law also requires the executor to provide a copy of the will to all beneficiaries named in it and then file a document with the court stating that notice was actually given.

Within 90 days, the executor also must file an inventory with the court listing the estate's probate assets. The inventory won't list everything — just the assets that passed under the will. Certain properties, such as life insurance, retirement plans, survivorship accounts, and payable on death accounts, may pass directly to a named beneficiary and don't need to be listed on the inventory. After the inventory is filed, the judge will sign an order approving it.

Typically, the executor is required to file the decedent's final income tax return as well. And for certain larger estates, there is the possibility that a federal estate tax return will be required - but not for people who die this year because there is no estate tax in 2010.

The executor's job also includes distributing the assets as provided in the decedent's will. It's important to know, though, that the process described here is for fairly routine, uncontested wills. It can get much more complicated, possibly even involving a jury trial, if the will is contested.

Ronald Lipman is an attorney with the Houston law firm of Lipman & Associates. He is board certified in estate planning and probate law by the Texas Board of Legal Specialization.

9:30 AM GMT | Read comments(0)

Ga. Supreme Court bars suspended probate judge

Atlanta Journal-Constitution
6/28/2010
Associated Press

The Georgia Supreme Court has permanently removed a suspended Twiggs County Probate Court judge from office and barred him from ever holding judicial office again in the state.

The court ruled on Monday that Judge Kenneth E. Fowler showed he was unwilling to live up to his legal and ethical responsibilities.

The Judicial Qualifications Commission found that Fowler had violated several judicial canons, such as by telling criminal defendants they had to prove their innocence.

The commission also said Fowler let criminal defendants buy out of community service, then put the proceeds into a bank account he controlled.

Fowler, who was suspended in May, is not a lawyer. His attorney, Jon Helton, returned a phone call but said he was in court and had not seen the ruling.

9:28 AM GMT | Read comments(0)

June 25

Fla. chief justice OKs electronic probate filing

The Miami Herald
6/23/2010
Associated Press

The Florida Supreme Court has approved electronic document filing for probate cases in 44 of the state's 67 counties over the past three years.

Chief Justice Peggy Quince issued an administrative order this week covering 21 of those counties and amending previously approved plans in the others.

The order dated Monday puts Florida another step toward a statewide electronic filing portal for all state court documents.

To reach that goal, the Supreme Court wants all local systems to be compatible with guidelines established by the Florida Courts Technology Commission.

10:17 AM GMT | Read comments(0)

Judge OKs cash for Bobby Brown’s kids

Boston Herald
6/25/2010
Gayle Fee and Laura Raposa

Bobby Brown’s child-support drama - which has been a continuing saga in Norfolk Probate Court for nearly 18 years - may have finally come to a close yesterday.

The former New Edition singer-turned-reality-TV star and his baby mama, Kim Ward of Stoughton, came to an agreement over how much more Bobby must pony up to support his two kids, LaPrincia, 20, and Bobby Jr ., 19.

The agreement was approved by the judge and then impounded, so we can’t tell you how much Bobby will be forking over. What we can tell you is that the hearing was very brief, and neither Bobby nor Kim showed up in court.

“The big issue was college expenses and how to handle those going forward,” said Norfolk Register of Probate Patrick McDermott . “But it was quick and uneventful, and they seem to have wrapped up all the outstanding matters.”

Brown, as you may know, filed a motion to lower his court-ordered, $5,500-a-month child support payments in April, saying he’d lost his job and had no source of income.

In other words, the recession has hit the former “Being Bobby Brown” star hard - and by recession we mean his divorce from sugar mama Whitney Houston!

Over the years, Bobby has been in and out of trouble with the local probate court because of missing and late child-support payments to Ward. A warrant was issued for his arrest in August, when he fell $45,000 behind, but he made good before being hauled off to jail.

Brown did spend some time as a guest of the county in February 2007, when he was thrown in the can for failing to pay $22,000 to Ward. In June 2004, he did 90 days for missing three months’ worth of payments. He was also threatened with jail time in October 2006 and in September of 2005.

Since parting ways with Whitney, Brown has supported himself with a string of reality-show appearances, including a failed attempt to lose 20 pounds on “Celebrity Fit Club” - which ended up costing him $9,000 ($1,000 for every pound he fell short of his goal) - “Gone Country” and “Outsiders Inn.” He also has attempted to restart his singing career with little success and fathered another child, a 2-year-old boy, with fiancee Alicia Etheridge .

10:17 AM GMT | Read comments(0)

What to do when a client becomes mentally impaired

Seacoast Online
6/21/2010
Andrea L. Day

It is estimated that more than 5 million people are currently suffering from Alzheimer's, the most common age-related memory loss disease. Within another five years, analysts put the number at nearly 8 million. It will only get worse from there.

Despite the recession, our baby boomers still have more money than any generation before it. And, because people are living longer than ever before, there is an increased likelihood that individuals will eventually suffer from Alzheimer's. These two factors are likely to create serious complications for wealth management advisors in the future.

Financial planners are often faced with increasingly forgetful or confused clients who may lack an ability to fully understand actions being taken on their behalf. Additionally, clients who are suffering from memory loss are far more likely to be taken advantage of by family members, friends, or in certain instances, caregivers. Financial planners are inevitably in a predicament when these scenarios arise because of an obligation to maintain confidentiality. Above and beyond issues of confidentiality, taking steps to address these types of concerns can jeopardize the financial planner's relationship with his or her client.

While there is no question that these circumstances are challenging for all involved, there are steps financial planners can take in order to be prepared to handle these situations.

First, be aware of the signs of incapacity. Signs can range from a decline in your client's physical appearance, increased emotional instability, increased confusion or forgetfulness, sudden changes in your client's relationships or rapid depletion of assets.

Second, make sure the client has estate planning in place, including a durable power of attorney (DPOA). In a DPOA the client designates an individual to handle his financial affairs if and when the time comes when your client can no longer do so.

Lastly, consider discussing potential incapacity issues with your client at the initial stages of your relationship. Most clients would likely appreciate the importance of addressing this issue up front so that you can provide protection if and when the time comes. You may be able to obtain written authorization to release confidential information to a designated family member or close friend should it become necessary later on. If and when the need arises, you can consider cautiously approaching that designated individual to express concerns and encourage further action.

Even if you take these measures, you may nevertheless be in the unenviable position of knowing further steps need to be taken. It is important to be aware of the possible options.

First, you may have an obligation to make a report to the Bureau of Elderly and Adult Services. You will be required to take this step if you have reason to believe that an incapacitated adult (not limited to elderly individuals) is being exploited, abused, neglected, or is living in hazardous conditions. Failure to report is a misdemeanor. While not an ideal circumstance, a call to BEAS may trigger an investigation and could change the situation.

Second, a conservatorship may be a way to protect your client's assets if your client is vulnerable but still has the ability to understand his circumstances. State law allows for an individual to appoint someone to handle his financial affairs for him. This is an option to consider when it is questionable whether the client could execute a DPOA but understands his circumstances and needs protection. The probate court requires that the individual voluntarily choose his conservator. A petition must be filed, and a hearing will be held in order to make the appointment valid.

Finally, there are instances in which a guardianship should be considered. When a client has deteriorated but does not have a DPOA, or when you have concerns about giving the person named in the DPOA authority to handle the finances, a guardianship may be necessary. Any interested person can petition the probate court to appoint a guardian. The court will do so if there is evidence that the proposed ward lacks the capacity to handle his own affairs. The court determined whether an individual lacks capacity by examining an individual's functional, not medical, limitations, such as his ability to prepare meals, take medication, and handle his finances.

A financial planner's ability to become involved in this process can be complicated by many factors. While never ideal, the financial planners who are aware that these issues will arise and are prepared to address them are far more likely to protect their clients while also preserving those important relationships.

10:16 AM GMT | Read comments(0)

Where are they now - A year after Michael Jackson's death

CNN
6/25/2010
Alan Duke

CNN's Don Lemon speaks exclusively with friends and family members about Michael Jackson's last days in "Michael Jackson: His Final Days," 8 p.m. ET Friday on CNN.

Los Angeles, California (CNN) -- Michael Jackson's death instantly changed the lives of his family and friends. The weeks immediately after the pop icon died were chaotic, and many questions are still unanswered for those closest to Jackson.

Michael's children

The day their father died, Prince Michael, 13, Paris, 12, and Blanket, 8, moved in with their grandmother Katherine Jackson at the Encino, California, home where Michael once lived with his family.

The home is filled with memories of their father, including many photos of a young Michael Jackson. The theater room of the large house was converted into a classroom where they've been home-schooled for the past year.

The grassy yard of the Encino estate is often filled with Michael's kids playing ball with four cousins -- the sons of Jackson brothers Jermaine and Randy -- who have lived there the past year with their mother.

They share a computer with internet access, which resulted in fans getting a rare and candid look at Blanket's dancing, acting and light saber skills when several videos were uploaded to YouTube in April.

While Jackson kept his children shrouded in privacy during his life, they have appeared at a handful of public events to honor their father since his death.

Paris made the world cry at the end of a memorial for her father when she said, "Ever since I was born, daddy has been the best father you could ever imagine."

Paris and her older brother took the stage at the 2010 Grammy Awards to accept their father's lifetime achievement award.

"To all his songs, his message was simple, love," Prince Michael said. "We will continue to spread his message and help the world."

The three children traveled to Gary, Indiana, this week for their first visit to their father's first home. They will take part in a tribute there, along with Katherine Jackson and their grandfather Joe Jackson.

Michael's mother

Katherine Jackson's main focus since her son's death has been caring for his three children. A Los Angeles judge immediately gave her temporary custody, which became permanent after Debbie Rowe, the mother of the two oldest children, agreed not to challenge her.

Michael's 80-year-old mother waged a legal fight for several months for control of Jackson's estate, but gave up her probate challenge in October. She and Jackson's children are the main beneficiaries of the estate. For now, they are receiving an $86,000 monthly family allowance.

Katherine Jackson and her husband have attended every hearing in the criminal case against Dr. Conrad Murray, the physician who is charged with involuntary manslaughter in their son's death.

She has only recently begun speaking publicly about her son's death, giving a handful of media interviews. Katherine Jackson also posted a YouTube video this month announcing her support for a tribute to Michael Jackson to be held June 26 in Beverly Hills, California.

Although Katherine and Joe Jackson have been married for 61 years, they do not usually share a home.

Michael's father

In the weeks after Michael Jackson's death, Joe Jackson -- his children call him Joseph -- denied allegations that he physically abused his son during his Jackson 5 days.

"Never. Never have. And I -- and I raised him just like you would raise your kids, you know? But harm Michael, for what? I have no reason. That's my son. I loved him and I still love him," Jackson told CNN's "Larry King Live" in August.

Joe Jackson has been outspoken and active in raising questions about his son's death. Jackson has called for a more serious charge than involuntary manslaughter against Murray.

He recently filed a complaint with the California Medical Board against AEG, the company that was producing the comeback concerts. The complaint accused AEG of neglecting to provide the recommended medical equipment and a nurse who was supposed to assist Dr. Murray. Those measures could have prevented the singer's death or revived Jackson when he stopped breathing, according to the complaint.

Michael's father also plans to file a wrongful death lawsuit against Murray on Friday, the anniversary of his son's death.

Jackson, not mentioned in his son's 2002 will, has an ongoing legal challenge against the men named as executors in the document. The probate judge has ruled against him, but it is under appeal.

While Jackson, 80, receives a monthly Social Security check, he depended on financial support from his son. That ended with his son's death. He petitioned the probate court to award him $15,000 a month in support, but the request is still pending.

Jackson, who lives in Las Vegas, Nevada, has been promoting his vision of a Jackson family museum and entertainment center in Gary, Indiana.

Michael's siblings

Michael Jackson's five brothers and three sisters have, at times, come together as a family since his death. But, as with many large families, they each follow their own paths.

Brothers Jackie, Jermaine, Tito and Marlon appeared together on an A&E Network reality show last fall that followed their attempt to record and perform again as a musical group. The series ended after six episodes with no new songs and no public performances. Brother Randy chose not to take part in the show.

Jermaine Jackson has been the most visible publicly, traveling around the world to promote his own projects and Michael Jackson's legacy. He recently performed a tribute concert to his brother in Gambia.

Sister Janet has stayed busy with her acting and music career, which included roles in two Tyler Perry movies in the past year.

La Toya Jackson has been outspoken in her belief that Michael Jackson was the victim of a criminal conspiracy to kill him. She has attended each of Murray's court hearings.

Rebbie Jackson, the oldest of the Jackson siblings, recently resumed her singing career. However, she has mostly remained out of the spotlight.

Michael's ex-wife

Debbie Rowe is a former nurse who married Michael Jackson in 1996, gave birth to his two oldest children and then agreed to a divorce settlement in 1999. Prince Michael and Paris remained with their father.

In the weeks after Jackson's death, Rowe considered a legal challenge for custody of the children. She finally reached an agreement with Katherine Jackson that would allow her supervised visits with the children under guidelines to be recommended by a child psychologist. It is unclear if the children know Rowe is their mother.

Michael's doctors

Murray lost his only patient when Jackson died a year ago. It was several months before Murray resumed his medical practices in Houston, Texas, and Las Vegas, Nevada.

He never got paid the $150,000 monthly salary he was owed for the two months he was Jackson's personal physician while the pop star rehearsed in Los Angeles for his comeback concerts, Murray's lawyer said.

Murray was charged with involuntary manslaughter in Jackson's death in February. The judge refused to suspend his California medical license, although Murray cannot personally administer anesthesia on patients. The maximum sentence if convicted is four years in prison.

His preliminary hearing, which is expected to last at least a week, could begin in late September. A trial could be held next year.

Dr. Arnold Klein, Jackson's dermatologist and longtime friend, was never criminally implicated in Jackson's death, although drug agents did subpoena medical records from his office.

Klein hinted in an interview that he may have been a sperm donor for Jackson's children. His lawyer unsuccessfully appeared at a probate hearing last summer to seek a role for Klein in the children's lives.

Michael's money

When Jackson died, he was nearly $500 million in debt, according to a source familiar with his estate who is not authorized to speak about financial matters. In the year since, the debt has been reduced to about $300 million, the source said. The remaining debt is "very manageable" considering the income flowing into the estate, the source said.

Sony Music, which recently signed a $250 million recording contact with Jackson's estate, said fans bought 31 million Jackson albums in the past year. Sony's film division also paid $60 million to produce the "This Is It" documentary that was a global blockbuster last year.

The estate also has a steady flow of cash from the rights to 250 Beatles songs that Jackson shares with Sony.

Merchandising rights, a Cirque du Soleil deal and a memorabilia tour have also brought in millions to the estate.

Jackson's estate is being administered by John Branca, an entertainment lawyer, and John McClain, a former music executive, who were named executors in the 2002 will. Los Angeles Superior Court Judge Mitchell Beckloff has not made a final ruling on who will have permanent control of the estate.

http://law.rightpundits.com/?p=1835

10:15 AM GMT | Read comments(0)

Estate Planning, As Told By Clint Eastwood In 'Gran Torino'

Forbes
6/21/2010
Liz Davidson

The right plan will maximize the good you do and minimize taxes.

When I rented the movie Gran Torino by Clint Eastwood, it was because my husband is a fan of the actor-director. Having seen the trailer of an angry old man yelling at people to get off his lawn, I wasn't even expecting to watch the film. But watch I did and came away thinking about life and leaving a legacy, big or small.

Clint Eastwood's character in Gran Torino, Walt Kowalski, helps a teenage neighbor in desperate need by becoming his mentor, though reluctantly at first. The impact this intervention has on the teenage boy, his family and the whole community, is significant. In the end (without giving it all away) his will is read and a special gift is left to the boy.

In my line of work, we call that estate planning. You start your legacy during your lifetime, and then you continue it after your death.

10:14 AM GMT | Read comments(0)

Irish sisters’ New York estate to go to animal charities

Irish Emigrant
6/21/2010
Melissa Turtinen

Mary Teresa Hayes and Nora Hayes, two sisters from Coolkeragh, Listowel, Co. Kerry, died and left millions of dollars in their New York estate.

Attorneys are now seeking out the sister’s family in Ireland – but not to give them the Hayes sisters’ estate, but to inform them the money will go to animal charities.

The sisters moved from Co. Kerry to the Upper East Side of Manhattan. Nora Hayes died Dec. 19, 1998, while Mary Teresa Hayes passed in Sept. 2006.

According to IrishCentral.com, before the millions of dollars are given to animal charities, their Irish family members must be informed of the estate transfer.

Louis McDonough, a Listowel lawyer, who is in charge of finding the sisters’ relatives said, “It seems to be a requirement of the American probate system that they be provided with information of cousins, so it’s to help out an American attorney that we’re trying to get the information.

It’s very rare that you have to go looking for relatives.”

10:14 AM GMT | Read comments(0)

June 18

Irish heirs of New York millionaire sisters will not see a penny

Irish Central
6/17/2010
Cathy Hayes

Two sisters originally from Coolkeragh, Listowel, County Kerry have died leaving millions of dollars in their estate. Attorneys are now desperately seeking out the sister’s family in Ireland not to bequeath them the money but to inform them that all of the money will go to animal charities.

Mary Teresa and Nora Hayes moved from the small village in County Kerry and settle in the Upper East Side of Manhattan in New York. Nora died on December 19, 1998 and Mary Teresa passed away in September 2006 leaving a fortune of millions.

Although their millions of dollars will be going to animal charities it seems that their Irish family members must all be informed that they will not receive a penny before the money goes to charity.

Probate Attorney Central

The Long Island, New York (NY) Probate Direcotry