Category: Estates and Trusts

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Probating Not-Wills

This semester I began using the just-released 8th edition of Dukeminier’s Wills, Trusts, and Estates.  Five weeks into the semester, I’m pleased with this latest revision, primarily because some chapters have been reorganized in ways that are much more consistent with how I actually teach the course, which means that the students spend less time hopping between cases.  One new note, however, has needled me into reconsidering the 1990 Uniform Probate Code, particularly as amended in 2008.

In the note, the casebook authors describe Stephanie Lester’s 2007 study of more than 120 Australian cases in which the court used the dispensing power, i.e., probated a document which had not been executed in compliance with the formalities because clear and convincing evidence showed that the decedent intended the document to be a will.   The casebook authors provide this summary of Lester’s work:  “[Lester] concluded that the dispensing power has continued to fare well—with one exception.  In a troubling number of cases, the court admitted a document to probate despite evidence that the document was not intended to be a will but for which there was good evidence of whom the decedent wanted to benefit.”  (For an American case of the same stripe, see In re Estate of Kuralt, where the court probated as a holographic codicil a letter stating that the ailing Kuralt would have a “lawyer visit the hospital to be sure you inherit the rest of the place in MT.”  (emphasis by Kuralt). 

My reaction to this trend is twofold: (1) if it is troubling, it’s not surprising, and (2) is it really troubling? Read More

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CBGB’s Post Script: Not So Punk

120px-CBGB_club_facade.jpgThe iconic music club CBGB & OMFUG (aka CB’s) opened its doors in 1973, featuring acts like Patti Smith Group, Television, The Ramones, Talking Heads, The Dictators, and Blondie. Although initially intending to showcase a variety of music (hence the full name “Country Blue Grass Blues and Other Music For Uplifting Gormandizers”), founder Hilly Kristal ended up nurturing America’s punk scene. During the 1980s, hardcore bands such as Reagan Youth, Muphy’s Law, and Agnostic Front appeared during Sunday matinees, often called “thrash days.” At CB’s, the bathrooms had no doors; fliers papered the walls. After a thirty-three year run, the club closed in October 2006. Patti Smith appeared in a final concert to bid the club adieu.

Although now gone, the club remains legendary, the memory of rebellion, stale beer, and cigarettes firmly stuck in many’s minds. This Tuesday, fans and celebrities like Stevie Van Zandt and The Dictator’s Handsome Dick Manitoba came to the opening of the Rock and Roll Hall of Fame Annex NYC to see an exhibit of CBGB artifacts, including the club’s tattered awning, cash register, and flier-covered phone booth.

But the club’s past does not resemble the present wranglings over its legacy. When club founder Hilly Kristal died last year, he left the majority of his estate (worth millions due to the popularity of CBGB tee-shirts) to his daughter, leaving his son and ex-wife disappointed and ready to challenge the will. In a suit filed in Surrogate’s Court in Manhattan, Mr. Kristal’s former wife (and mother of his children) claims that she is the rightful owner of the business and that Mr. Kristal and their daughter deceived her by hiding the money from the sale of the CBGB merchandise. As Karen Kristal (the founder’s ex-wife) explained to The New York Times, “I put up the money, spent my time in there. And then my daughter says that they get it all. And that’s a lie.” Longtime members of the CBGB community shake their heads at the ugliness of the dispute but insist that CBGB’s symbolic place as the birthplace of punk rock will remain undisturbed. The Ramones’ artistic director Arturo Vega offers that the lawsuit “shouldn’t reflect what this place was about . . . . CBGB was a beacon of freedom for young people, something to believe in.” Indeed.

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Eager Heirs

Today’s New York Times has an excellent article about how important it is that parents share their estate plan with their adult children, particularly if the plan runs counter to expectations:

The day will come, or may have already, when your children think of your money as theirs.

In uncertain economic times like these, with the stock and housing markets down, credit markets tightening and widespread anxiety about the economic future taking hold, the subject of inheritance can be even more fraught for a family: parents may worry over the fate of their fortune, and children may feel the need to dip into it.

A parent’s instinct under such stress — to put off discussion until far in the future — can have its own set of costs. . . .

Succession is a natural progression, as old as the concept of private property, yet many parents never bother to tell their children about plans for their estate. . . .

Grown children who know their parents have assets typically expect the money to be left to them in equal shares, say lawyers, wealth advisers and psychologists with long experience in the legal, practical and emotional aspects of inheritance.

Parents, though, often have different plans, deciding that Morgan has enough; that Jack the spendthrift should receive an annuity; that Judy’s special needs after an accident require extra consideration; or even that the best gift is to leave the children little or nothing material.

Mitchell Gans, a law professor at Hofstra University in Hempstead, N.Y., who has helped develop some of the most complex estate plans in the country, recommends that in such cases you should prepare the will and then notify “the kids that you are cutting out — or who are getting less than the others.”

“If you have the courage to do that,” Professor Gans said, “you cut down significantly the chance of litigation after death.”

As an Estates and Trusts professor, I could make good use of a phrase that neatly sums up the unfortunate tendency to start thinking of your parents’ money as your own, even when said parents are still very much alive and kicking. Heirticipation is the best I’ve been able to come up with, but I hope some of you chime in with more inspired suggestions.