Will Challenge

When spouses divorce, there are often children left from first marriage. When one of the spouses remarries, he should be very careful that the children from the first marriage do not get disinherited.

The second spouse, who is often much younger and less financially secure, may exert pressure on her husband to provide for her in the event of his death.  The second spouse may have new children, whom the father sees on a daily basis. Simultaneously, the remarried husband may not see the children from first marriage as often (due to geography or ill-feelings from both sides).

In a recent case that I saw, a woman lived together with a man for approximately 10 years. She loved him very much and wrote a Will, leaving all of her assets to him. They never married.

Eventually, the couple separated. After a couple of years, the woman began dating another man.

1. Location of Siblings. It is often the case that one sibling provides care and support for an aging parent, while other siblings are distant (either physically or psychologically). While the local sibling provides support, that same sibling may also control the parent’s finances. The same sibling may also bring the parent to an attorney to get his affairs in order.

In 2016, several well-known families had well-publicized fights about estates. These disputes should teach everyone to plan while one has capacity!

Prince

Pop artist Prince died in April 2016 without a Will. Since his death, at least 30 individuals have come forward, claiming to be Prince’s children, spouses, or half-sibling. As of this writing, the judge on the case dismissed most of these claims. It looks like the estate, valued in the hundreds of millions of dollars, will be split amongst Prince’s younger sister and five half-siblings (pending the final results of genetic testing).

A Will execution has many formalities - ensure that your attorney actually knows them!

Most people think that writing and signing a Will is easy. I often hear from friends "Any attorney can do it", or better yet "It's so easy, I don't need an attorney, I will do it myself".

Well, do so at your own peril. Remember that the content of your Will is only half of the calculation for getting a Will probated, since Wills can and often do get invalidated based on improper execution, particularly when the Will is executed without an attorney being present. The latest case in point: Matter of Costello, 136 A.

As most people by now know, the artist Prince died without a Will. The family is now set up for tens of thousands in legal costs and years of delay before the money gets distributed.

When a person dies without a Will, regardless of the size of his estate, numerous problems come up. These include:

1. Executor. The person who will be named in charge of your estate may not be the person that you would have liked.

Property partnership may end for a variety of reasons. One common category of circumstances when real estate litigation occurs involves siblings who inherit property from their parents and have different wishes.

Multiple problems can arise.   One sibling may want to live in the property while the other one wants to rent it out. Alternatively, one sibling may want to cash out and sell the property while the other may want to keep it. The sibling who wants to keep the property may not have the money to buy the other sibling out. Furthermore, the siblings may not agree on the property’s value.

One alternative for establishing the value of the property is to hire three appraisers and take the average of their given values. Of course, the appraisers cost money.

The better alternative is to structure your bequest in a way that avoids potential conflicts amongst the siblings. No parent wants to believe that their children will fight after their death, but unfortunately it happens all the time. First, Wills and Trusts can be written such that the real estate will be given to one child while the other assets will be given to the other. Another alternative is to provide in your Will or a Trust that real estate should be sold within a year of death and proceeds should be distributed equally amongst the beneficiaries.

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship. ATTORNEY ADVERTISING

In a recent New York case, a Will provided for disposition of 2/3 of the property (leaving property to decedent’s siblings, nieces and nephews) and was silent about the disposition of the remaining 1/3. In re Isasi-Diaz, NYLJ, Mar. 28, 2014, p. 35 (Sur. Ct., N.Y.Co.) (Mella, S.)  The attorney-draftsman provided an affidavit to the court, explaining that he made a mistake, that the decedent provided him with instructions about the disposition of her entire estate, but he made an error while drafting the Will.

The court denied the petition for reformation. The court reviewed the express language of the Will. The court also relied on the well-established New York rule that extrinsic evidence will not be admissible to contradict the unambiguous expressions of the decedent. As a result, since the Will was unambiguous about disposing only a portion of the estate, the court ruled that it could not rewrite the Will based on extrinsic evidence.

The takeaway: please review your documents prior to signing them. Attorneys are human and make mistakes. You should always request to review your documents prior to signing and actually spend the time reading them to ensure that they reflect your wishes. Do not be afraid to change or add things, since this is your document! Do not be afraid to ask questions!

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship. ATTORNEY ADVERTISING

In a recent Australian case, Re Yu [2013] QSC 322, a digital Will was admitted to probate. Mr. Karter Yu, prior to committing suicide, drafted several documents on his I-phone, saying farewell to his family and friends. One of these documents was his stated Will, appointing his brother as an Executor. The court, after pain-staking analysis, admitted this electronic document to Probate. The court did this despite the fact that the legal requirements of the execution were not met.

In New York, which is very strict about observing all legal formalities, this bending of the rules would not have been permitted and Mr. Yu would have been considered to have died “intestate” – without a Will. There are several requirements for a Will to be valid in New York:

1. A Will must be in writing

2. A Will must be signed at the end by the Testator

3. The Testator must sign the Will in the presence of at least two Witnesses

4. The Testator must declare to the Witnesses that the document that he is about to sign is his Willwhile

5. The two witnesses must attest to the Testator’s signature and must sign the document themselves.

The only exceptions that are permitted to the punctilious execution of these formalities are for members of the armed forces of the United States while in the actual military or naval service during a war or other armed conflict, a person who serves with or accompanies an armed force engaged in actual military or naval service during a war, or a mariner while at sea. Upon an expiration of one year from a discharge from armed forces, or upon an expiration of three years from the time the mariner returned from the sea, such a Will becomes invalid.

As a result, if one wants to have a proper Will in New York State, ALL legal requirements as stated above must be observed.

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.

When Arthur Mondella committed suicide in February 2015, he thought that his three daughters and his sister will inherit his $8MM fortune. Mr. Mondella committed suicide when his illegal marijuana growing business was discovered under the floor of his maraschino cherry factory. The factory was started by his grandfather and father in 1948, and the business appears to be legitimate. However, at this point, given how hard it is to tell which of the assets that he owned were from legal activities and which were from illegal ones, the amount that Mr. Mondella’s family will receive remains in doubt.

Under the civil forfeiture proceeding, the District Attorney office may seek forfeiture of funds obtained through criminal acts. The heirs cannot claim an “innocent owner” defense, because at the time the criminal acts were committed, they were not the owners of the factory.

The rules governing the civil forfeiture are arcane – the statute was adopted in 1881 and has not been updated since. The rationale for the statute is to seize money obtained illegally and to fund the NYPD to enable it to continue fighting the crime. However, it is very difficult to determine what amount of money was obtained illegally and what amount was earned through legitimate work. The incentive for the city, of course, is to claim that the largest amount of money possible came from illegal profits. Last year, NYC was projected to receive $5.3MM through civil forfeiture. The addition of $8MM from Mr. Mondella’s estate would be a nice increase to the NYC’s budget.

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.

What happens if a person dies without direct relatives and without a Will? The result is a long and expensive process for the heirs, that could last years and cost thousands of dollars.

What happens if a person dies without a will? New York State has an administration process under which the assets are distributed to the heirs at law (spouse, children, siblings, more distant relatives). Before the assets are distributed, however, the heirs must prove that (1) they are related to the decedent and (2) there are no other relatives that are entitled to the inheritance. With a spouse, the process is usually easy – a marriage certificate is sufficient proof. With children, the proof is also easy – a birth certificate is sufficient.

Proof of relationship: The process becomes more complicated when there are more distant relatives. You can understand why the Surrogate Court will want to see proof of the relationship – otherwise anyone could walk in and claim to be a relative of the decedent. However, establishing this more distant relationship becomes difficult. For example, how to prove that your uncle is actually your uncle? You can potentially get a letter from a un-related party who will swear that he knows your entire family well and that you are related. But what if there is no such person?

Proof that no other relatives with claims similar to yours exist. In addition, the Surrogate Court wants to ensure that ALL relatives get their fair share. Thus, if your grandfather died without a will, and there are no surviving children, but there are grandchildren, the Court will want to ensure that ALL grandchildren receive their equal share.  At that point, you will have to prove to the court that 1) all the grandfather’s children have died (a death certificate is preferable) and 2) that all the grandchildren are accounted for.

What happens if some of the grandchildren cannot be located, and you are not aware if they are alive or dead? You may have to hire an investigator and search for them. You may also have to publish announcements in local newspapers. And what if these relatives are likely to be in another country? You have to go through the same process, but internationally. The court may even assign a Guardian Ad Litem for these ‘unknown heirs’. Now imagine if the same process has to be repeated for your aunt. Or your cousin. The length of time it will take to locate all the relatives, and to prove that there are no other ones remaining is arbitrary.

There are ways of eliminating this administration process. All of them, however, involve planning prior to the person’s death. Thus, if you know that the family relationship is complicated and it may take years for the heirs to get access to the money, it helps to talk to an estate planning attorney, to evaluate your options.

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.