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  • AB 139: Real Property

AB 139: Real Property

There are currently many non-probate transfer tools available to Californians, including property left to a surviving spouse, property left outside of a will through such methods as pay-on-death designations, joint tenancy ownership, and life insurance. California also offers the small estate affidavit – a simplified process available to transfer property under $150,000 but up until Monday, September 21, 2015, this did not include real property.

The Legislation (AB 139)

On Monday, September 21, 2015, Governor Jerry Brown signed into law AB 139 “Non-probate Transfers: Revocable Transfer Upon Death Deeds.” Introduced by Assembly Member Mike Gatto (43rd District), AB 139 creates a new, non-probate property transfer tool known as the “Revocable Transfer on Death Deed” (RTDD). Operating in a manner similar to a will, the RTDD transfer does not take effect until the transferor’s death and can be revoked by the transferor at any time prior to death. The bill requires: 1) the deed be executed using a statutory form to “eliminate self-drafting confusion”; 2) the deed be recorded within 60 days of execution; and 3) deed revocations be recorded. The law provides 120 days for any challenge to a property transfer under the new procedure. This differs from existing law in that now a mechanism exists to transfer real property (worth more than $50,000) without a will, trust, or probate.

Good or Bad?

While the legislation appears to offer Californians a cheaper, easier method for passing real property, the new law creates the potential for a lot of unintended consequences. For example, what happens during disability or incapacity? And what about all assets, not just the home? “Do It Yourself” estate planning can result in property being distributed against the transferor’s wishes. A preliminary review of the bill left me with these questions:

  • In cases where no other estate plan was executed, will beneficiaries have access to the decedent’s liquid assets to cover any taxes resulting from the real property transfer?
  • What happens if the AB 139 transfer fails? (ANSWER: the property will still have to go through probate)
  • What about capacity or the lack thereof? Many of my clients are elderly and part of what I do when consulting with them on their wishes for an estate plan is evaluate whether they have capacity to make decisions. I intentionally ask questions in illogical order to see if they can follow along. I ask for information like dates, names, important events, etc. to ensure the client fully understands what he or she is doing. With the AB 139 non-probate transfer for real property, there appears to be no mechanism to evaluate the transferor’s capacity. The form must be notarized, but notaries judge ID cards—not mental capacity.
  • What happens if the transferor does not complete the form properly or does not execute the deed in a timely fashion? The law requires the legal description of the real property and that the form be recorded within 60 days. If I had a $1 for every client that needed to be reminded to complete particular forms by particular deadlines, I’d be rich! The reality is, often times, people simply do not remember to file forms and no matter how “simplified” forms claim to be, they are not.
  • What happens if the transferor records this deed and then (like most people) forgets to update it when their circumstances change (e.g., beneficiaries die, relationships change, more beneficiaries are born, etc)?
  • What if the transferor names more than one beneficiary? The law says that beneficiaries will become “co-owners in equal squares” and cautions users NOT to use this form if they want a different result. But what exactly does “co-owners in equal shares” mean under this legislation? Joint tenancy? Tenants in common? Each has different ramifications and it is important to know what type of ownership is created before using the form.
  • What if the transferor has a specific distribution plan in mind for the real property, such as “do not sell for at least 10 years” or “allow my oldest child to live there during his or her lifetime” or “sell the property and create trusts for my children until they reach a certain age”? Can this form do that? No.

The AB 139 form also does not appear to protect the inheritances of future generations. As adopted, the form requires a list of the beneficiaries that will inherit the real property upon the death of the transferor. What happens if one of the beneficiaries dies before the transferor? In most estate plans, that person’s interest would pass to their children, which means the transferor’s grandchildren would inherit the share of the deceased parent. However, with this form, in that same scenario, the property would be distributed among the remaining persons listed on the form and it does not contemplate the grandchildren of a deceased parent. So an aunt or uncle could receive 100% interest in real property to the detriment of another sibling’s children and completely against the wishes of the transferor.

Conclusion

There are many non-probate transfer options and simplified affidavit procedures under California law that have been around for decades and are helpful to many individuals. But no matter how many shortcuts, boilerplate forms, or DIY websites are introduced—estate planning is not a one-size-fits-all endeavor. There are careful considerations that must be taken into account and a fill-in-the-blank form is likely not to address those considerations. Anyone considering use of this new mechanism may wish to see how it plays out for a few years before testing its effectiveness on his or her family.

--Written by Lauren N. Peebles, Esq. (September 2015)

  • Life After Death: Social Media Immortality

Life After Death: Social Media Immortality

This morning, a friend of mine posted the following: “If you died and your social media accounts were all that your children had left to remember who you were, what would it say about you?” Although there was a broader message to her post, she had me at “if you died…”

As an Estate Planning attorney, I spend quite a bit of time thinking about the “what ifs” of life. My job is to help think through these possibilities to advise my clients on the best choices to make right now. But this question of social media and death, particularly for those of us that value having all of our affairs in order, is a good one.

What are digital assets anyway?

A digital asset is intangible personal assets including files and information stored over the Internet—social media sites, blogs, photo and video sharing sites, email accounts, “cloud” storage systems, online music accounts and more. Digital asset estate planning is an emerging area of law. Whereas estate planning of the past did not contemplate digital estates, estate planning professionals today are becoming increasingly mindful of estate planning for passwords, online accounts and digital property.

To give you an idea of the infancy of this area, as recent as 2012, the Uniform Law Commission—a non-profit formed in 1892 to create nonpartisan state legislation—appointed a Study Committee to consider estate planning for digital assets. That summer, ULC appointed a Drafting Committee which drafted a bill that, if passed, would give fiduciaries (e.g., agents, trustees, attorneys-in-fact) “at least the authority to manage and distribute digital assets, copy or delete digital assets, and access digital assets.”

Haters Gon’ Hate…

Objections raised by online businesses sent the Drafting Committee back to the drawing board. The proposed legislation was blocked by a coalition of internet-based businesses and privacy advocates that opposed certain provisions of the proposed law. This group offered their own suggested language for the new law. The bill is still being worked out so stay tuned for more information on the Uniform Fiduciary Access to Digital Assets Act (UFADAA) because this is just the beginning. What advocates of the UFADAA (and this author) do not understand is the objection to the act which seeks only to honor the wishes of the deceased who name a fiduciary to manage their online accounts. If I leave clear instructions on what I want done with my online presence when I pass, what place is it of an internet business to stand in the way of my instructions?

One monkey don’t stop no show…

Although there is not yet a Uniform Law in place to govern fiduciary access to digital assets, many online internet subscription services have their own death policies. Here’s an overview of the more popular sites:

Social Media Sites

Google. Google’s Inactive Account Manager feature allows immediate family members and representatives to close online accounts in some cases once a user is known to be deceased, and in certain circumstances they may provide content from the deceased user’s account.

Facebook. You can notify Facebook in advance of your preferences upon death or incapacity including whether you’d like your account “memorialized” or permanently deleted. You can name a “legacy contact” to look after your account once it’s been memorialized.

Instagram. Instagram will memorialize your account. All they need is a link to your obituary or news article of your death.

Twitter. Twitter requires information about your death, a copy of the ID of the person providing notice, and a copy of your death certificate before closing an account. Twitter may also remove imagery in certain circumstances. It considers public interest factors such as newsworthiness before deciding whether to remove certain images.

LinkedIn. LinkedIn will accept a death notice from anyone to remove the deceased member’s LinkedIn profile.

Email Service Providers

Yahoo. Yahoo requests a letter containing the request and stating the Yahoo ID of the deceased, coupled with a copy of a document appointing the personal representative or executor of the estate, plus a copy of the death certificate. Yahoo’s policy highlights the importance of having a properly executed will or living trust as they require such documentation before taking any action upon your death.

Gmail. For Google’s email service, they require the full name of the person providing notice along with their physical mailing address, email address, a copy of their government-issued ID or driver’s license, the Gmail address of the deceased person, the death certificate in English, plus the header of an email from the deceased person to person notifying them. After these hoops, Gmail will notify your representative if they can move on to Part 2 of the process which requires additional legal documents, “including an order from a U.S. court and/or additional materials.”

What’s problematic about Gmail’s policy is it appears to still throw grieving loved ones into court—probably one of the main things the deceased hoped to avoid by drafting their will or trust.

Outlook. Outlook (Microsoft.com) has a very comprehensive policy and will allow your next of kin to close your account.

AOL. AOL will allow your billing account to be transferred to another person, but this author was unable to find information on what becomes of the decedent’s free email account.

Financial Subscription Accounts

iTunes. iTunes’ Terms & Conditions provide that there is no right of survivorship. This means that all rights in what you download on iTunes terminate at your death. Once iTunes is notified of your death with a death certificate, your account may be terminated and your content deleted.

PayPal. PayPal requires a cover sheet from the estate personal representative, a copy of the deceased’s certificate, a copy of the personal representative’s ID, plus a copy of the legal document proving they are the personal rep. Once received, money left in the deceased’s PayPal account can be transferred to the bank account on file or sent to the personal representative in a check.”

Online Banking

Bank Of America. Simply call their Estate Unit with the deceased’s full legal name, social security number, bank account number and a copy of their death certificate. Any money in their account will pass according to their will, trust or probate proceeding.

Chase. The author had to call Chase to find out their policy which is not documented online. After a brief hold and conferring with her supervisor, the phone representative indicated that anyone can go into a branch with a copy of the deceased person’s death certificate and the bank will change the online bank profile to “inactive”. Eventually, the profile will close due to inactivity. It was also suggested that when the trustee or personal representative provides the other documentation to transfer funds from the deceased’s account to the Estate account, the bank will cancel any affiliated online bank profiles. The author suggests submitting a request to the bank, in writing, that they cancel the online bank profile—particularly since there appears to be no documented company policy.

Wells Fargo. Like Chase, the author was unable to find this institutions written death policy. I suppose following the same procedure as you would for Chase would work for this institution as well. The bank should close the account, and any affiliated online profiles, with a copy of the deceased’s death certificate.”

Conclusion

As you can see, each company has a different policy. The problem with this is that in almost all other areas of estate planning, companies honor the wishes of the deceased left in a will or trust or powers designated in a Power of Attorney. However, many of these online companies ignore the wishes of their users in an effort to protect the same user’s privacy. So “if you died and your social media accounts were all that your children had left to remember you…” you may wish to leave instructions on how your social media accounts should be used, who should manage them, and how long you want them left active. Although many online internet providers present obstacles for fiduciaries carrying out their role when it comes to digital assets, this will certainly be an area of law that will change in the near future. Stay tuned…

--Written by Lauren N. Peebles, Esq. (September 2015)

  • The Pro's And Con's of Doing Nothing

The Pro's And Con's of Doing Nothing

You’ve heard that you need a will or living trust, but you aren’t quite sure why. You remember Aunt Sally who died without a will and can’t remember any consequences. Things seemed to resolve on their own and it was no big deal that she didn’t have a plan in place, right? Well, that depends.

Everyone—black or white, young or old, single or married—should create an estate plan, but not everyone does. In fact, studies show that over half of all Americans do not have an estate plan. Not to worry, leave it to the State of California to come the rescue.

California's Default Rules

California’s Probate Code governs intestate succession—a set of laws that outline how a person’s assets should be distributed if they did not leave their own instructions. The state will consider your spouse, children, parents and siblings when you have not. For some, the state’s default rules are sufficient to represent their wishes. For others, the state’s rules do not capture their specific family dynamics or their desires for how property should be handled upon death.

This does not mean that the state’s rules are entirely bad. When you pass away without a will (or even with one), your estate must go through probate. Probate is the process by which your affairs are wrapped up—someone is appointed as your executor to handle the probate, creditors are provided notice of your death so that your final bills are paid, beneficiaries receive notice so that they can obtain their inheritance, and the court monitors the entire process. Some people like the idea of having the court system involved to monitor how things are handled. Others do not prefer this idea and would instead prefer someone in their family or a friend handle their affairs when they are unable to. Additionally, probate proceedings are public. If you’re a private person, you may not like the idea that any one and everyone can discuss your business openly in court.

Attorney's Fees in Probate

The State of California’s default estate plan is not without cost. The default rules provide for attorney’s fees and personal representative fees. Currently, attorneys and personal representatives are each entitled to a percentage of the value of your estate: 4% of the first $100,000 of the gross value of the probate estate, 3% of the next $100,000, 2% of the next $800,000 and 1% of the next $9 million. In California, a modest estate including a single property and a few bank accounts could easily rack up tens of thousands of dollars in probate expenses. This means less money for the people of your choosing and more money for people you may not even know!

You Decide

At the end of the day, whether or not to create an estate plan is a personal choice. The State’s default plan is a “one size fits all” estate plan, but many times the State’s plan simply does not fit. The best thing to do is sit down with a licensed Estate Planning Attorney who will listen to your unique family situation and the things important to you and will draft an estate plan that represents your desires. You may choose not to create an estate plan altogether or simply to just not create one “right now”. No matter what your decision, know that the State of California has a plan for you and the only way to free yourself of the government’s choices is to make them for yourself. The choice is yours.

--Written by Lauren N. Peebles, Esq. (September 2015)

  • Whitney Houston: Rich Woman, Poor Planning

Whitney Houston: Rich Woman, Poor Planning

Have you done any estate planning? If the answer is no, you’re not alone. In fact, it took Whitney Houston—a woman who’s net worth totaled $20 million at her death—six and a half years from her marriage to Bobby Brown to draft a will. Bobbi Kristina was one month shy of six years old. When Houston did, she executed a very simple 16-page will (legal document that names individuals who will receive your assets after your death). Whitney made provisions to have her funeral expenses paid and then assigned her estate to her living child(ren). She included specific instructions on how the estate was to be distributed to her child(ren): one-tenth distributed at 21, one-sixth at 25 and the balance to be distributed at 30. Houston wisely contemplated the possibility of not having any living children and left the balance of her estate to the following family members in that instance: Cissy Houston (mother), John Houston (father), Bobby Brown (husband), and Michael & Gary Houston (brothers). Initially, she named her attorney, Sheldon Platt, as her executor (which raises some red flags) and Mr. Platt and her sister-in-law Donna Houston as co-trustees of the trusts created by her will. A later codicil (an amendment to the will) replaced the attorney with Cissy as executor and Michael as co-trustee.

Whitney Houston’s Shocking Will

First, it’s amazing that someone with Whitney’s fame, fortune and status would have executed a will in the first place rather than a living trust. A will, unlike a trust, becomes public record. Second, the will was outdated. Whitney and Bobby divorced April 24, 2007 and yet her will, providing for Bobby Brown, was never changed. Perhaps Whitney intentionally left Bobby in the will? Well in most states, an ex-spouse cannot inherit under a will after divorce. Notwithstanding state laws, the better practice would have been for her to update her will following the divorce to avoid any potential ambiguity as to the star’s wishes. Finally, and similar to the second point, Whitney’s will named Bobby as the guardian of person and property of Bobbi Kristina. This may or not be what Whitney intended but, given Whitney’s unfortunate and untimely passing, we can’t ask what she intended. In the end, Whitney’s outdated will is not totally fatal and in that way, “it’s not right—but it’s okay.”

--Written by Lauren N. Peebles, Esq. (August 2015)

  • The Importance of Updating Your Testamentary Documents

The Importance of Updating Your Testamentary Documents

At the time of her death in March 2010, it appeared after a thorough search that decedent Robyn R. Lewis had left no will. Letters of estate administration were therefore issued to her parents, Meredith M. Stewart and Ronald L. Lewis, pursuant to New York law. Although decedent had been married to James A. Simmons, the marriage ended without children in 2007 when the couple divorced, leaving decedent’s parents as her sole heirs. They, however, renounced their interest in decedent’s Clayton, New York residence in favor of decedent’s brothers Ronald L. Lewis, II and Jonathan Lewis. The Clayton property, which had been in decedent’s family for generations, would thus have passed to decedent’s blood relations but for the December 2010 filing in Jefferson County Surrogate’s Court of petitions by the decedent’s ex-husband’s side of the family to revoke the parents’ letters of administration and to admit to probate a will executed by decedent in Texas in 1996. That will bequeathed all of decedent’s property, real and person, to her then husband James A. Simmons, and named him as the will’s executor. The will had been in the possession of the ex-husband’s mother who retrieved it from her dresser after her son informed her that he had learned during a recent Internet search of his former wife’s death some eight months before.

Here, the facts of record, adduced in critical part through the testimony of the decedent’s ex-husband, supported inferences that decedent executed her 1996 will in quadruplicate, with each document having been meant to possess the force of an original instrument; that one of the will duplicates was kept at the Clayton, New York home where decedent resided after her divorce; and that, after a thorough search, no will was found there. Plainly, these circumstances sufficed to raise the presumption that decedent revoked her 1996 will by destroying it. It is equally plain that that presumption was not rebutted. None of the other duplicate wills was produced or otherwise accounted for. And, although the ex-husband’s side urged the Surrogate Court to accept that the unproduced duplicates were merely copies, the uncertain status of the will duplicates, although commented upon by the Surrogate, was never resolved. The Court felt they were left “with a will admitted to probate upon a record sufficient only to disprove it.”

In the end, what are the take-aways?

  • Update your documents, especially after major life events like a divorce. An updated will could have made clear that Ms. Lewis revoked all prior wills therefore leaving nothing to interpret upon her death.
  • Be careful about duplicate originals and if you revoke an earlier will, be sure to revoke the other originals so there is no ambiguity. If you cannot locate the other originals, consider including statements in your updated will that you are aware of the missing originals and it is your intention to also revoke those copies.
  • Store your documents and any revisions in a safe place. In Estate of Lewis, the decedent’s neighbor, Marilew Barnes, claimed that the decedent executed an updated revised will and left it with Ms. Barnes. The problem? Ms. Barnes lost it.

--Estate of Lewis, 2015 WL 3495582 (June 4, 2015)

  • Dangers of Online Forms and DIY Estate Planning

Dangers of Online Forms and DIY Estate Planning

Ramon Regan died on April 12, 2011. Prior to his death, Mr. Regan resided for about ten years in a personal care home maintained by June Swilley and her husband, Elroy. In 2008, Swilley arranged for Susan Beckham, a local notary public, to assist Regan in preparing a will. During the meeting with Mr. Regan, notary public Beckham filled out a preprinted form titled “Last Will and Testament” pursuant to Mr. Regan’s instructions. Mr. Regan then signed the document on February 7, 2008, in front of Beckham, Swilley, W.J. Cameron, and Charlotte Saucier. After witnessing Mr. Regan execute the document, Cameron and Saucier also signed the last will and testament in Regan’s presence as his witnesses. The document stated that Regan never married or had any children.

Mr. Regan’s last will and testament stated that, upon his death, he wanted to distribute all his estate, including his monetary and real property. However, the document failed to name a beneficiary to whom Regan wished to distribute his property. Swilley asserted that, due to a scrivener’s error ("scrivener's error" is the legal principle that a map-drafting or typographical error in a written contract may be corrected by oral evidence if the evidence is clear, convincing, and precise) by Beckham in filling out the blank form, the document failed to name the Swilleys as Mr. Regan’s beneficiaries. Swilley asserted, however, that the document still met the statutory requirements for a will and clearly reflected Mr. Regan’s intent to devise or bequeath his property. She therefore argued that the chancellor should consider parol evidence (that is, evidence of a now-deceased person’s statements prior to death) to determine Mr. Regan’s intent. By contrast, the Estate of Mr. Ramon Regan contended that the failure to name a beneficiary made it impossible to determine Regan’s intent by reviewing the document alone.

On appeal, the court held that parol evidence may only be used if the language of the document is ambiguous or subject to multiple interpretations, but may not be used to “make a will which the testator did not make.” Here, the court held, the document did not lack ambiguity; it simply failed to list any ascertainable beneficiaries due to poor drafting. As a result, the lower court was correct in refusing to consider parol evidence because the court would have had to “insert a beneficiary’s name where the will completely failed to provide one.” The will was declared to be invalid, which resulted in Mr. Regan’s assets passing to his natural heirs at law.

--Estate of Regan, 2015 WL 1528927 (April 7, 2015)

  • Failure to Provide Trust Accounting Results in Jail Time for Trustee

Failure to Provide Trust Accounting Results in Jail Time for Trustee

Between 1984 and 1994, Jeffrey Whitman, a licensed Ohio attorney, established several custodial accounts for the benefit of his son, Justin, under the Uniform Gift to Minors Act (UGMA) and Uniform Transfer to Minors Act (UTMA). He also established three trusts for Justin’s benefit: a “College Fund Trust,” a “Revocable Trust” and a “Grandfather Trust.” The College Fund Trust contained custodial funds belonging to Justin. The Revocable Trust allegedly contained Jeffrey’s personal money. The Grandfather Trust was established pursuant to the will of Jeffrey’s father. Jeffrey served as fiduciary for all these accounts and trusts.

In 2007, Justin filed a petition for an accounting of the custodial accounts and the trusts, alleging that Jeffrey had failed or refused to provide an accounting upon request. On July 21, 2008, in a hearing on Justin’s petition, the trial court held that Justin was entitled to an accounting on all the above accounts and trusts. The trial court gave Jeffrey 30 days to file an accounting of the College Fund Trust and 60 days to file an accounting of the other accounts and trusts. On September 16, 2008, well past the 30-day deadline regarding the College Fund Trust, Justin filed a motion for contempt, alleging that Jeffrey failed to comply with the previous order. On September 19, 2008, Jeffrey filed a two-page document, along with more than 40 pages of supporting documents, as the accounting of all the accounts and trusts. Jeffrey’s filing provided no information about the UGMA/UTMA custodial accounts and consisted of financial statements, letters from the financial entities that issues the statements and a two-page list of disbursements prepared and signed by Jeffrey. On November 4, 2008, Justin supplemented his motion for contempt with a motion to strike the accounting and requested an investigation.

At a November 7, 2008, hearing on Justin’s motion for contempt, Jeffrey admitted that his accounting was inadequate. The trial court gave Jeffrey two weeks to submit an appropriate accounting. On November 26, more than two weeks after the November 7 hearing, Jeffrey filed a second accounting in which he provided more detail for each account, including beginning and ending balances, but again omitted the UGMA/UTMA accounts, claiming that he had no records prior to 2000 for those accounts and that the account funds had been rolled into the College Fund Trust.

The trial court held Jeffrey in civil contempt and appointed a forensic accountant to conduct an investigation into the College Fund Trust and the UGMA/UTMA accounts. The trial court ordered Jeffrey to cooperate with the forensic accountant and explicitly warned Jeffrey that further noncompliance could result in jail time.

On February 22, 2010, the forensic accountant filed her report with the court. She found that the College Fund Trust consisted of the funds from the UGMA/UTMA accounts and that approximately half of the funds were transferred out of the trust. She could not determine the purpose of those transfers, and Jeffrey provided no explanation. In examining the UGMA/UTMA accounts, the accountant determined that $65,085 had been transferred into the Revocable Trust and that this amount was the largest sum of funds deposited in that trust, so she also conducted an accounting of that trust. The accountant also determined that two W-2s had been issued to Justin by Jeffrey’s business, reflecting income paid to Justin as an employee. Jeffrey admitted that Justin never worked for his business.

After reviewing the evidence, the trail court held Jeffrey in civil contempt for failing to account for the UGMA/UTMA accounts and the College Fund Trust. The trial court ordered Jeffrey to pay the accountant’s fees and sentenced him to serve three days in jail. The trial court awarded Justin the remaining funds in the College Fund Trust and the Revocable Trust. The trial court also awarded Justin $104,128.57 in attorney fees.

In the end, what are the take-aways?

  • Trust Administration requires honestly, responsibility, and diligence. The law assigns very specific and unforgiving duties to a fiduciary. If you have been appointed the trustee of a trust or executor of a will, please call The Law Office of Lauren N. Peebles to assist you. Don’t find yourself the subject of one of these cases.

Whitman v. Whitman, 2012 Ohio 405, 2012 Ohio App. LEXIS 366 (Feb. 6, 2012)

  • Lost Will Still Admitted To Probate

Lost Will Still Admitted To Probate

Decedent Anthony Gonzales passed away in 2009, leaving behind a large estate and predeceasing his sisters Judith Sanchez, Alma Darnell, Virginia Murguia, Evelyn Chacon, Ethel Armenta, and Alice Tafoya, and his brother Hector Gonzales. In sorting through the decedent’s possessions following his death, the sisters discovered multiple wills. The dispute arose out of the parties’ competing contentions regarding the selection of a will to probate.

At decedent’s residence, five of the sisters went through documents Decedent left in a safe, and discovered a holographic will (A holographic will is one entirely in the writing of the testator. The requirements are that it be signed, dated, and that it evidence testamentary intent. See Prob. Code, § 6111.) dated June 15, 1998, and a statutory will dated June 16, 1998. Both wills named sister Judith Sanchez as the executor and her children as the contingent executors. The holographic will did not dispose of decedent’s property; however, the statutory will did—it devised decedent’s entire estate to Sanchez. Sanchez petitioned to probate the 1998 wills.

One of the sisters also discovered a January 2009 holographic will at decedent’s residence. Evelyn Chacon read the 2009 will aloud to the sisters, who also examined it. Although the 2009 will also named Sanchez as executor, its terms were markedly different than the 1998 wills. The 2009 will instructed that the estate be divided equally among all of the siblings. Subsequently, the 2009 will could not be found. Alma Darnell petitioned for the 2009 will to be admitted to probate. Contrary to the assertions of her siblings at trial, Sanchez denied the existence of the 2009 holographic will and testified that the document they examined was a jewelry list and not a will.

Judith Sanchez asserted that the court erred by granting Alma Darnell’s petition to probate the lost January 9, 2009 holographic will. However, the Court of Appeal upheld the lower court’s decision. It ruled that the court properly granted Darnell’s petition to probate the lost or destroyed holographic will.

In the end, what are the take-aways?

  • In the case of Estate of Gonzales, it would have been helpful to discard of the earlier, outdated 1998 wills. However, there are instances where it is helpful to hold on to previous drafts because they help make the intent in a current revision more clear. The bottom line: be very careful about revisions and talk with an attorney about best practices for storing your documents.

--Estate of Gonzales, 2015 WL 2329264 (May 14, 2015) (unpublished)

  • Estate of Sarah O'Hare

Estate of Sarah O'Hare

Virginia had served as guardian of Sarah's estate from November 9, 2007, until June 24, 2010. The trial court found that Virginia failed to properly account for the use of estate funds and had spent substantial sums for her own benefit and the benefit of members of her family other than Sarah.

Virginia submitted her first annual report and accounting in October 2008. The lower court found the accounting both (1) insufficiently detailed and substantiated and (2) rife with questionable expenditures. Not only had Virginia used estate funds to purchase a family home in Florida, she reported substantial payments related to vehicles and was drawing a large salary from the estate without the trial court’s approval. Dissatisfied with Virginia’s attempts to properly account for the use of the estate’s funds, on February 2, 2009, the lower court appointed the public guardian to review the accounting, including receipts and other records that had been tendered to the court in connection with the accounting. In February 2010, Virginia submitted her second annual report and accounting. Later that month, the public guardian filed a preliminary report of his investigation in which he concluded that the estate was apparently “providing not only for [Sarah’s] support, but for the support of the entire family.”

Virginia argues that the trial court “penalized” her for “an imperfect job of record keeping.” Virginia insists that in managing Sarah’s estate her “primary goal” was to make Sarah’s life “as comfortable and pleasurable as possible” and that the trial court’s judgment was “inequitable.” The appellate court said that Virginia’s argument grossly mischaracterized the record, which showed that, although Sarah received excellent care, Virginia’s breach of her fiduciary duty to Sarah went far beyond sloppy recordkeeping. Rather, Virginia appeared to have almost completely disregarded her obligation to preserve and manage the estate to provide for Sarah’s needs; instead Virginia drew upon estate funds for the support and comfort of the family as a whole. Sarah was not legally responsible for support of the family. Notably, however, the trial court disallowed expenditures for the family’s support not in their entirety, but only to the extent that they exceeded Sarah’s fair share of the costs they defrayed.

The appellate court upheld the lower court’s ruling and ordered Virginia to pay $421,621.73.

--In Re: Estate of Sarah O'HARE, Illinois, No. 2–14–0073, Decided: June 11, 2015

  • Co-Trustee Removed for Mismanagement of Trust and Failure to Cooperate

Co-Trustee Removed for Mismanagement of Trust and Failure to Cooperate

John Deneny created a revocable trust for the benefit of his son, Sean, and his daughter, Barbara. John intended for the trust to hold a certain apartment building located in New York City. He appointed Sean and Barbara as co-trustees of the trust.

As co-trustees, Sean and Barbara acquired title to the building in 2005. Barbara moved in and began using the building as her primary residence. Sean lived in California from 2007 until 2010, when he returned to New York. Sean and Barbara agreed that Barbara would be responsible for collecting rent checks and managing the property.

Sean petitioned the court to remove Barbara as co-trustee, alleging that she failed to administer the trust properly. Sean alleged that Barbara filled 10 of the 20 apartments with excrement, vermin and garbage. The court noted that the trust’s bank account was nearly depleted, and that any trust income was spent on trust expenses or used by Barbara for her personal shopping. Barbara also failed to pay the water bill, resulting in an acceleration of all unpaid water bills, which totaled $21,426.74.

She failed to file a real property income and expense report, which subjected the trust to a penalty of up to 3 percent of the building’s actual assessed value. Sean alleged that the poor condition of the property resulted in tenants complaining, breaking their leases and abandoning the property. Finally, Sean also alleged that Barbara was abusive toward him and his children and refused to cooperate with him in the administration of the trust.

Barbara denied Sean’s allegations, and charged that Sean failed to manage the trust’s finances. She alleged that Sean failed to pay for repairs, pay vendors and taxes and make the required filings. Barbara petitioned the court to terminate the trust.

Sean opposed Barbara’s petition for termination of the trust, arguing that he repaired the property, rented five units and increased the income-producing potential of the property.

The court found that it was an undisputed fact that Barbara failed to maintain the property and the trust’s finances appropriately, and that her unwillingness to cooperate with Sean had impeded Sean’s efforts to maintain the property. Due to these facts, the court granted Sean’s petition to remove Barbara as co-trustee. Finding that there was no dispute as to the property’s income-generating capability, the court concluded that termination of the trust was unwarranted.

In the end, what are the take-aways?

  • Trust Administration requires honestly, responsibility, and diligence. The law assigns very specific and unforgiving duties to a fiduciary. If you have been appointed the trustee of a trust or executor of a will, please call The Law Office of Lauren N. Peebles to assist you. Don’t find yourself the subject of one of these cases.

--Matter of Deneny v. Rossem, 34 Misc. 3d 1203A, 2011 N.Y. Misc. LEXIS 6357 (Dec. 29, 2011)