Mrs. Helmsley was a very intelligent and successful woman.  No one quibbles with that.  When she died two years ago, she left $12 million for her own dog, Trouble and a lot of the remainder of her large fortune to be used “to benefit dogs”.

Last month, Maddie’s Fund, the Humane Society of the United States, and the American Society for the Prevention of Cruelty to Animals, petitioned a court in New York City seeking the reversal of a prior ruling which held that the trustees of Mrs. Helmsley’s estate were not required to spend its money only on dog welfare.

Earlier this year, the trustee’s distributed $136 million of which only one million was earmarked for causes benefitting animals.

The issue the plaintiffs raise is an interesting one and has implications far beyond this case.  To what extent are trustees or administrators of an estate obligated to carry out the decedent’s wishes when the decedent’s wishes seem impractical to some or even to many?

As an estate planning attorney, who prepares many trusts and wills, I advise my clients that the benefit to them of preparing an estate plan is that they have control over the assets that they have accumulated.  Am I advising them incorrectly?

The trustees in the Helmsley matter argue that during the three year period from the time of her executing her final estate planning documents and her death, she and the trust gave over $29 million dollars to charities and not one dollar of that amount was to dog-related charities.

In February of this year, a judge ruled that the trustees could “apply trust funds for such charitable purposes and in such amounts as they may, in their sole discretion, determine”.  I have always been taught and taught that a testator’s intent as to his/her estate is found in his/her estate planning documents and that unless those documents violate public policy, or the testator was under undue influence, the victim of fraud, or incompetent, those documents control regardless if they require a distribution of the estate that seems a little far-fetched.

This is one case I will be monitoring.

DJ AM was someone that I knew little about until September 2008.  Prior to that time I knew that Nicole Ritchie had seriously dated a Club DJ.  In September 2008 DJ AM, aka  as Adam Michael Goldstein was involved in a plane crash with Travis Barker of Blink – 182.  That is when he became “famous” to me as the crash received national attention.

My assistant had seen him perform twice this year.  She thought he was extremely talented.  So when I read that he was dead in his apartment in New York City it hit home. 

Attorneys for his mother filed a petition for probate today in the Los Angeles Superior Court.  They filed in the same courthouse that my office files a fair number of probates each year. 

As most people know, probate is a public process and a fair amount can be gleamed from the petition.  He did not have a will.  He did not have a spouse or any children.  Therefore under California law his mother is his sole heir because his father is deceased. 

The petition for probate lists his address and estimates the value of his assets that will be going through probate and his liabilities.  It is very straightforward and the probate should proceed without a hitch.  I am certain that anyone that calls himself/herself a probate attorney has had more difficult cases.

His mother also seeks to be made the special administrator of his estate because it is alleged that Goldstein was close to accepting an offer for the sale of his house and was also involved in litigation concerning the plane crash that she wants authority to settle on behalf of the estate – of which she is now the sole beneficiary.

One could argue that had he had a living trust, things would have been even simpler, but    DJ AM’s death will not be cited too frequently on the need for a trust.  In fact, it could be cited for how smooth a probate can be when there are no disagreements.  

What are the rights of a widow to the frozen sperm of her husband?  That is an issue that I as a probate attorney have never had brought before me, but if and when it does, I will be prepared.

That question was partially answered in 2008 by a California Court of Appeal when it ruled that a husband’s signed agreement wherein he directed the company storing his frozen sperm to discard it upon his death was controlling.

The decedent, died in a helicopter crash in 2005.  His widow had been appointed in California probate court the administrator of her husband’s estate.  She sought a court order requiring the Northern California Fertility Medical Center to release the sperm to her.

The Court ruled that for postmortem reproduction, the probate court’s reliance on the agreement to determine that the husband did not want his widow to make use of his sperm after his death was valid.

The Court wrote “that gametic material, with its potential to produce life, is a unique type of property, and that it is not controlled by those laws that control personal property.  The court ruled that the superior court’s relying on the decedent’s intent was proper and in line with California law.

Moreover, the Court stated that this ruling did not harm the widow’s right to procreate.  The court distinguished frozen sperm from frozen embryos which result from two donors.