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In this viewer's opinion, "The Office" has grown from modest beginnings to become the funniest show on television. This week's episode sounds like a good one -- here's the writeup from tv.com:
When Michael takes over conflict resolution duties from HR, chaos ensues at Dunder Mifflin.
Somehow I think Michael Scott (Steve Carell's character) is going to provide lots of tips on what NOT to do in resolving conflicts.
This week I met with a new client who was seeking advice about the best way to disinherit her brother (he had looted my client's mother's estate upon her death last year). The client wanted to leave $1 to her brother, since she had been told that this would prevent her brother from contesting the Will.
This isn't actually the case, and a $1 bequest is generally a bad idea. In order to close an estate, the attorney for the executor or administrator has to produce signed receipts from every beneficiary. It goes without saying that a beneficiary who inherits $1 is less than thrilled to sign such a receipt, and usually refuses.
The "best" way to disinherit someone is to (a) simply do it and (b) make your reasons for doing it clear to your attorney and/or in your Will.
I previously discussed the Rosa Parks probate litigation here. The Detroit News recently published an article updating the story (which you can find here). This part of the article is particularly worth addressing:
A lawyer for [Elaine Steele, who was Mrs. Parks' caregiver and is named as one of her executors] has accused the [lawyers for Mrs. Parks' nephew, William McCauley] of conducting "an all-out fishing expedition" about Parks' finances, her possessions and those of her closest associates dating to 1994. The requests are "oppressive" and "annoying," Steele's lawyer wrote in court records.
As oppressive and annoying as they may be, these requests are often the only way for a party to make sure that a decedent wasn't taken advantage of during his or her lifetime. For instance, in Illinois, you can initiate citation proceedings (which I discussed here) to gather information. A citation allows you to depose the person you believe is holding property belonging in an estate, and to examine any "books of account, papers or evidences of debt or title to lands" in the person's possession. Citation proceedings are helpful for addressing situations where a person may have stolen property from an estate, as well as cases of undue influence.
On the other hand, I think that Mr. McCauley's lawyers have their work cut out for them, because of two questions they need to answer:
1. Why is Mr. McCauley only raising questions of capacity and undue influence now that Mrs. Parks has died (and he stands to benefit)? If Mrs. Parks lacked capacity, or was being unduly influenced by Ms. Steele, why didn't Mr. McCauley do something while Mrs. Parks was alive? The evidence would have been much clearer at that time (especially the evidence of capacity, since Mrs. Parks could have been examined by the court or physicians). Mr. McCauley's argument -- that his family "had scarce access to their previously attentive aunt in her later years... [which] fueled suspicion that Parks' mind was fading and that she was under the control of Steele" -- doesn't hold up. If you have suspicions, you get them addressed by initiating a guardianship proceeding. You don't simply give up, and wait until your loved one dies to raise the issue.
2. If Ms. Steele unduly influenced Mrs. Parks, then why did Mrs. Parks leave most of her estate not to Ms. Steele, but to a charity (the Rosa & Raymond Parks Institute for Self Development)?
The article also explains why Mrs. Parks' estate is worth fighting over. It's not that being a civil rights pioneer is particularly lucrative -- rather, it's due to the fact that Mrs. Parks "was awarded an undisclosed amount of money to
settle a lawsuit with record companies and other parties over the use
of her name in the title of a song by the rap group OutKast."
Since this blog doesn't focus much on real estate issues anymore, visitors with an interest in Illinois real estate may wish to visit the Illinois Real Estate Blog, run by Robert C. Thurston. Mr. Thurston's blog focuses on both commercial and residential real estate.
I've recently started on an (overly) ambitious lifetime reading plan. Part of the plan involves tackling a Shakespeare play or two per year (keep in mind that there are 37 of them!). Because Turner Classic Movies was showing "Julius Caesar" last week (the Marlon Brando version), I decided to start there. Interestingly enough, Julius Caesar's Will plays an important part in the story.
(Spoilers ahead!) After Brutus & Co. kill Caesar, they make the mistake of allowing Mark Antony to speak at Caesar's memorial service. Mark Antony then gives his famous speech -- the one that begins "Friends, Romans, countrymen, lend me your ears! I come to bury Caesar, not to praise him." Mark Antony goes on to turn the crowd against Brutus & Co., finally using Caesar's Will as evidence that Caesar loved the people of Rome:
... he hath left you all his walks,
His private arbors, and new-planted orchards,
On this side Tiber; he hath left them you,
And to your heirs forever- common pleasures,
To walk abroad and recreate yourselves.
This is the last piece in a brilliant bit of rhetoric. What's also interesting is the fact that Caesar's Will proved to be pretty important in real life as well, for entirely different reasons. The main beneficiary of Caesar's real-life Will was his nephew Gaius Octavius -- Mark Antony wound up trying to contest Caesar's Will and battling Octavius, who eventually was named emperor (under the name Caesar Augustus). (For more information, you may wish to access the Julius Caesar Wikipedia entry and/or this page, both of which I've used for reference. Wikipedia also has the entire text of the play, here)
Saturday's Wall Street Journal featured a lengthy article about John J. Donovan Sr., described as "a wealthy technology consultant and entrepreneur." The article details a lot of family intrigue, including allegations of sexual abuse by one of Mr. Donovan's daughters, and a shooting incident that was possibly masterminded by one of Mr. Donovan's sons -- or by Mr. Donovan himself. The article is here, but available only to subscribers.
Is Mr. Donovan a disturbed, evil man? Or are his children simply being greedy and taking advantage? It's impossible to tell from the article, but one aspect of the dispute caught my attention:
In the early 1990s, Mr. Donovan established two trusts in Bermuda, naming his children as beneficiaries. The trusts were designed, among other things, to shelter his wealth from taxes and to assist with estate planning, according to his lawyers. Mrs. Donovan says her husband believed the money would be used to start companies and create wealth. He wanted some of the money going to the kids, but most to charities, she says, although those goals were not incorporated into trust documents. The trusts were structured so that trustees in Bermuda had discretion over them, and Mr. Donovan's permission wasn't required for his kids to tap the money, according to lawyers for both Mr. Donovan and his children. According to his lawyers, the trusts eventually contained more than $100 million in cash and securities. (Emphasis added)
Mr. Donovan apparently set up an irrevocable trust for his children. Once set up, such a trust is irrevocable, which means you can't change it or revoke it. If Mr. Donovan wanted to give "most" of the trust funds to charities, he could have done so before he signed the trust agreement. He didn't.
It may seem strange, but the word "irrevocable" tends to be a hard one for clients to grasp. People who set up irrevocable trusts almost by definition have a lot of money and a fair amount of sophistication, but estate planners like to trade stories about clients who call and ask "how do I amend or revoke my irrevocable trust?" The answer is, "you don't."
This article describes a pretty interesting probate litigation case involving a woman named Madeleine Stockdale. In 1998, Mrs. Stockdale signed a Will leaving most of her estate (valued at over $5 million) to the Spring Lake (New Jersey) First Aid Squad. On January 3, 2000, about 3-1/2 months before her death, Mrs. Stockdale signed another Will, naming a neighbor (Ronald J. Sollitto) as primary beneficiary -- this Will was prepared by an attorney friend of Mr. Sollitto.
Since Mrs. Stockdale's death in April 2000, the $5 million plus question has been this: Is the January 3, 2000 Will valid? In July 2004, the trial court ruled that it wasn't, and threw out the January 3, 2000 Will.
My big concern here is, what has taken so long? The trial on the Will's validity ended more than four years after Mrs. Stockdale's death, and it took four months. The case is now on appeal, with no end in sight.
The issues involved in a Will contest tend to be fairly simple -- they involve (1) whether the creator of the Will (the testator) had the mental capacity to execute the Will and (2) whether someone unduly influenced the testator. This Bleak House-esque case -- dragging on and on, benefiting only the attorneys -- succeeds at little more than giving probate a bad name.
Two things:
1. Last week The Chicago Tribune ran a story about an Oak Park couple that recently discovered an interesting fact about their home: James Dewar, the inventor of the Twinkie, once lived there. (The article is here, although registration is required.)
2. I recently learned that Chicago Cubs Hall of Famer Joe Tinker (of "Tinkers to Evers to Chance" fame) once lived one block west of me in Oak Park. (Mr. Tinker's house at 832 Gunderson was built for him in 1907, and just appeared on a neighborhood housewalk sponsored by The Historical Society of Oak Park and River Forest.)
This got me thinking some more about whether having a house with a famous former occupant could help you in the real estate market. (I pondered this question with respect to gangster's homes last year.)
I have to think that the internet can be a huge help in marketing these properties. After all, a person interested enough in gangsters to buy Sam Giancana's house may not necessarily reside in the Chicago area. Instead of marketing only to Chicagoland residents, a savvy realtor engaged to sell the Tinker house might try to stir up interest among baseball fans generally or among Cubs fans (or fans of baseball history) in particular. This tactic probably won't work in all cases -- I don't know whether there would be anyone willing to pay a premium for The House That Twinkie Built -- but this kind of niche marketing may be worth exploring in some cases. After all, the goal in selling a house is to sell to the person who values it the most, and it only takes one huge Twinkie fan (no pun intended) to create a windfall for the seller.
It looks like the ranks of blogs about estate planning, probate, and related issues has expanded by two:
Arizona Elder Lawyer, a blog by E. Cameron Pickett; and
Utah and Nevada Estate Planning Blog, which is written by Brian L. Olson.
Distribution of someone's tangible personal property upon their death is tricky business, for a number of reasons:
1. Unless the decedent left specific instructions for each piece of property, their beneficiaries (usually the children) are going to be in direct competition for items of property.
2. While most Wills call for tangible personal property to be divided "in shares of substantially equal value," most families don't want to go to the expense of hiring an appraiser to value such property. As a result, everyone guesses at approximate values, and these guesses may be incorrect. Furthermore, "equal value" doesn't take into account sentimental value, or the fact that the items with the most sentimental value to the beneficiaries may be indivisible. (For instance, if your father's prized possession was his cane, how do you and your three siblings decide who receives this item?)
3. It seems like every family (including my own, I've recently discovered) has at least one "looter." By looter, I mean a family member who decides that he or she is entitled to some/most/all of the decedent's tangible personal property. The typical looter will ransack the decedent's residence and walk off with lots of valuables -- often while the decedent's body is still warm. When asked at a later date about what he or she took, the looter's memory usually becomes foggy ("I don't know").
How to deal with the above problems? I think the keys are foresight and formality. By foresight, I mean that the person named as executor in the Will (or the most responsible child, if there is no Will) needs to make sure that the residence -- and all tangible personal property in it -- is secured immediately upon the decedent's death. (Three words: change the locks.) In addition, appraisals should be performed -- there are costs involved, but I think appraisals save lots of money and aggravation in the long run. Finally, a formal meeting should be convened at which the beneficiaries select the items they want. At the end of that meeting, before anyone is allowed to leave with their property, each beneficiary should be required to sign a receipt and a release.
For a scary take on tangible personal property battles, you may want to take a look at yesterday's dear prudence column on Slate (here).
