The actress Brittany Murphy died in December 2009 at the too young age of thirty-two having been born on November 10, 1977.  Brittany Murphy moved to California to pursue acting and was on an episode of Murphy Brown in 1991. She landed a recurring role in her first television series, Drexell’s Class, when she was still 13 years old.  While she had roles in several television series in her teens, her first large movie role was in 1995’s Clueless.  She was a very talented woman whom the critic Roger Ebert at one time compared to Lucille Ball.  Moreover, she was a prolific actress having been in over 30 movies and over 20 televisions shows including 226 episodes of the show King of the Hill for which she did voicework from 1997 through 2009.

Brittany married Simon Monjack in May 2007 and was married to him at her death.  Shortly after her death it was reported that she had executed her will prior to marrying her husband.  It was widely known that she was very close to her mother and many speculated both in writing and orally that in her will and or trust, that she left everything to her mother. 

The fact that she may have executed her will prior to her marriage and therefore did not provide for her husband is frequently nearly meaningless in California.  California law, as does the law of many states, provides for this possibility and dictates that the surviving spouse generally inherits. 

California Probate Code Section 21610 provides that if someone fails to provide for his/her surviving spouse in an instrument executed prior to marriage, the spouse shall receive the one-half of the community property that belonged to the decedent (remember one-half is already his/hers); and the share of the separate property of the decedent that he/she would have received had he/she died without having executed a will or a cannot  exceed one-half of the value of the separate property.

Therefore, Brittany’s husband will inherit from her unless he specifically gave up the right to inherit in a written agreement.  This can be done in a premarital agreement or some other such agreement provided it is demonstrated that the waiver was fair at the time of signing and the surviving spouse was represented by counsel at the time of the signing.

Therefore, if Mr. Monjack does not inherit from his wife’s estate it is because he agreed that he would not inherit.  In California, at least, the probate law is clear on that point.

Brooke Astor’s son and an estate planning attorney have been convicted in a New York state court of defrauding and stealing from her.  Both men face prison time.

The question is whether there are any lessons that estate planning attorneys should take away from this case.  I argue that the vast majority of estate planning attorneys operate at the highest ethical levels and always remember to put the best interest of their client as their first priority.

Hundreds of times I have been contacted by a child  of an individual indicating that his/her parent does not have a will or a trust and needs to prepare his/her estate planning documents.  I always ask the individual calling whether the person is competent.  When I hear “no” then I politely indicate that I will not be the attorney to prepare the documents. 

Sometimes I receive a response indicating that the individual is not sure if the person is competent.  Inevitably my reply is to ask whether they know who the president of the US is?; What day is it?  What month is Halloween?  If they cannot answer those questions, then I will not be the person preparing a will; or a trust; or an amendment to a trust; or a codicil to a will; or a power of attorney on their behalf.  Furthermore, they need to have an understanding of what they have; who their relatives are; and who is getting what.

Therefore, the lesson that I learned from the Brooke Astor case is to continue to do what I have been doing.  As long as I do that, the client will be well served and I will not have to defend myself that I prepared an estate planning document for an incompetent client.

As an estate planning and probate attorney, I always like to come across articles in the mainstream press, such as this one from the USA Today, which explain what is important to do and why it is important to do it.  Probating as many decedent’s estates as we do in our office, we like people to understand how probate can be avoided as well.

http://www.usatoday.com/money/perfi/basics/2009-10-22-making-a-will_N.htm

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.

As I write this on June 17, the City of Los Angeles honored the Lakers for winning their 15^th championship in the NBA.  There was a parade attended by hundreds of thousands of people and a ceremony in front of over 90,000 in the Los Angeles Coliseum.  Only the Celtics have more championships and they only have two more.

The Lakers have been owned by Jerry Buss since 1979.  Obviously he deserves a great deal of credit for the success of the team during that span with fifteen trips to the finals and nine championships during that span.  When he bought the team, he was in his forties.  Now at age 76, he realizes that he has to plan for the future.

Since he has owned the team, he has seen up close that estate planning has caused the O’Malley family sell to sell the Dodgers and the Autry family to sell the Angels. 

Many who follow the Lakers, have known that Buss has taught his children the business of running the franchise and he has the next generation ready to both own and run the franchise upon his death.  However, in a recent interview published in the Los Angeles Times Magazine, Buss was quoted as saying of the estate tax issue: “It’s a severe economic issue for me.  It’s an ongoing one, and I’m addressing it as best I can.  I’m prepaying the taxes, and I’m keeping my fingers crossed that I live long enough to accomplish the whole thing.”

Buss acknowledged that it could force a sale stating “There are rules and regulations, but we’re getting to a point where I’m pretty sure my family can hold on to the team.”  Most Lakers’ fans, were they to think about it, hope he is right!

Earl Morgan was a judge in North Platte, Nebraska.  When he died, his will provided that the majority of his estimated $3.2 million estate was to be given to a North Platte animal charity – Paws-itive Partners Humane Society.

Mr. Morgan left two children and they are contesting the will.  They have filed a pettion to set aside the informal probate of the will and they are contending that their father was susceptible to the exercise of undue influence “because of his advanced age and physical and mental condition”.  When he signed his will, the retired judge was 87 years old.

It is rare, but not unusual, for a will contest to allege that a charity utilized undue influence on a testator.  The petition says his will is void and unenforceable and should be ruled invalid.  Moreover, it seeks to remove the estate’s personal representative (a ong time attorney) and replace him with the judge’s daughter.

The next court hearing is scheduled for January 20, 2009.  If nothing else, this case points to the necessity of dotting all the i’s and crossing all the t’s when executing a will or a trust.  Otherwise, there is going to be probate litigation.

While many wills do not contain much in the way of details, some wills tell a lot about a person.  Some wills even shed light about what is and what is not acceptable in a given society.

In California probate courts – it really does not matter whether it is in Los Angeles County, Orange County, San Bernardino County, Riverside County, or anywhere else in the state – a large percentage of probates involve either pourover wills or do not involve a Will. 

I recently came across an article on Tony Ryan’s will.  Mr. Ryan was the founder of Ryanair which is a European version of the United States’ Southwest Airlines.  His will disposed of 95 million euros (currently $135,830,000 dollars) – which was only a fraction of his wealth as the majority of it was in discretionary trusts for his children and grandchildren.   He provided 20 million euros ($28,600,000) to his estranged wife and 6 million euros  ($8,580,000)to his final lover, Martine Head.  The article makes a point of noting that none of his other well-known lovers are mentioned in his will, which was lodged last week in Dublin’s Probate Office.

Ms. Head is the daughter of a prominent horse trainer and lived with him at his estate during his illness. Prior to his relationship with Ms. Head he was also involved with other well-known women in Dublin including Lady Miranda Iveagh.

I am not sure if this was specified in his will or his trust, but his funeral service included “a fly-past by three aircraft, and a memorial at Lyons, cost over $700,000 in American dollars.

Recently I have read about two cases that have interesting fact situations that are being heard  in probate courts .  While neither of them are California cases, as a California probate attorney it is important for me to be aware of what is going on nationally.

In Florida, Jessica Kalish was stabbed to 222 times with a screwdriver by her lover, Carol Ann Burger.  Kalish and Burger owned a home in joint tenancy.  Therefore, under normal operation of law, the home became Burger’s upon Kalish’s death.  (Burger killed herself a day later).  However, Florida has what is known as a “Slayer Statute” which provides that murderers and their estates cannot inherit from the victims. 

Just this week, Wendy Hunter Roberts, a  feminist writer, therapist, and new age guru filed an action seeking part of Kalish’s estate.  Roberts claims that she had “a very close personal relationship” with Kalish and that according to her there is a will naming her as a beneficiary.  Therefore her attorney has indicated that he will file a “request for access to the property to find that will.”

As a probate lawyer based in Los Angeles, but handling cases throughout the state of California, I always explain that it is extremely important that people have their estate planning in order.  I realize it is easy to write this after the fact, but it would have been wise for Ms. Kalish to have held her interest in the property in a living trust.  In that document she would have set forth her beneficiaries.  Another option would have been to hold title to the property as tenants in common. 

The second case involves a couple in Ohio and their son.  That son was convicted of attempting to kill his adoptive parents.  Two years after that attempt, Walter and Mildred Sowell had wills prepared.  In their wills, they left $50 for their only child.  They left the remainder of their estates to the other.  Unfortunately, or not,  there was no mention of secondary heirs.

Therefore, under the laws of intestacy, the son who attempted to murder them in 1982 now appears ready to collect more than $500,000.  To his credit, the now 43 year old runs a commercial cleaning business.  Previously he was in the Navy and he also drove an 18-wheeler for 10 years.

Did his parents want him to receive everything?  We will never know.  Not just in Ohio, but probate courts in Los Angeles, Orange, San Bernardino, or Riverside Counties are not in the business of deciding what decedents should have wanted or even what they might have wanted.