If you are a regular reader, you know that at the end of the month, we like to survey the elder law landscape and share interesting happenings. For the June roundup, we focus on estates involved in litigation, touch on potential estate tax changes, and revisit ethical wills.
Clients, especially those with trusts, wonder why they need a will. Part of the answer is to name a personal representative, also known as an executor. The personal representative has a special job few people think about when they are crafting an estate plan. He or she must manage litigation. An estate, just like a person, can sue – or be sued. The estate can bring a lawsuit (be the plaintiff) if the decedent was wronged. And it can defend the estate (be the defendant) if others bring lawsuits against the decedent.
If an estate loses a lawsuit and there’s an award of damages, payment comes from the estate. The estate can pay out only what it has. If there’s not enough money, heirs or beneficiaries don’t have to pay with their own money. But an award can consume the entire estate. So if an estate faces a lawsuit, heirs shouldn’t count on a windfall.
Sue or Be Sued
Lawsuits occur with estates for a variety of reasons. Here are some that hit the news this past month:
Sir Arthur Conan Doyle: The estate of the creator of Sherlock Holmes is suing Netflix over the media company’s movie Enola Holmes, about Holmes’ teenage sister. In prior lawsuits, the estate lost the copyright protection argument; the character of Holmes was deemed in the public domain and no longer protected. This time, the estate argues that the film’s depiction of Holmes violates copyright because its Holmes is a Holmes unlike the unprotected character. He’s different– acts human, has emotions, respects women, and likes dogs, which makes for a complaint that’s far more fun to read than is typical.
Richard Adams. The ruling over another classic came down in favor of the estate. Adams was the author of Watership Down, and his estate sued director Martin Rosen. Rosen, who directed the well-known 1978 animated film, spun off other projects. Problem is, he didn’t have rights for that. He thus infringed on Adams’ copyright. Total damages are to be determined.
Jeffrey Epstein. This is one of the more extreme cases of an estate as defendant. The estate faced more than three dozen lawsuits from women accusing Epstein of abuse. The estate has established a victims’ fund, administered separately from the estate, and it has no cap on claims to the creeper’s more than $600 million estate.
Lawsuits About the Money
Of course, personal representatives also sort out more typical disputes. Such as who is entitled to estate assets? One long-running dispute appears to be coming to an end. The South Carolina Supreme Court ruled that James Brown was not married to a woman claiming to be his spouse. With that question settled, the court said the executor should promptly proceed with the probate of the estate. Brown’s estate plan provided for a trust to help educate kids in South Carolina and Georgia.
In other June roundup news . . .
Arizona Ruling Illustrates: Lawyers Can Help
A recent ruling from the Arizona Court of Appeals illustrates a common problem: Lack of lawyering. The case, In Re the Guardianship of Andrea O’Neil, centered on who should be guardian for Andrea, an incapacitated adult. Mom Gloria filed the initial petition asking for her own appointment. Gloria’s son and Andrea’s brother, German, argued he would be better. Andrea also objected through her court-appointed attorneys, Melissa Ahlers and later Leigh Bernstein (a former Fleming & Curti attorney).
The trial judge, the Hon. Kenneth Lee, appointed German. Gloria appealed. Neither Gloria nor German had an attorney. The memorandum opinion points out that courts hold people who go it alone to the same rules as those who have lawyers. Gloria’s appeal failed in multiple ways. She didn’t present an argument, cite any legal authority, or include a transcript as required. All things a lawyer would have known to do. The Court affirmed Judge Lee’s order. Maybe Gloria had a point. We’ll never know because she didn’t follow the rules.
Views on the Future of the Estate Tax
Wondering what might happen with the estate tax? No one really knows, but here’s a 10-minute video of some experts exploring the possibilities. Says one of them: “Planning as we know it would be gone and over.” Others are not so sure raising taxes is likely on the horizon.
A Personal Take on Ethical Wills
A few weeks ago, we wrote about “ethical wills.” Here’s a first-person account of how meaningful such a document can be. Says the author: “As sad as I am to be losing my father, I feel overwhelmed with gratitude. I know what my dad believed in, who he was at his core, what he wanted for my siblings and me and how much he loved us. Nothing was left unsaid. He has given us these gifts that I can now share with my own children, and with the world.” Estate planning, at its core, is about expressing what you want. Please do that in as many ways as you can! It really does matter.
That brings the June roundup to a close. Stay safe out there. Mask up, wash up, and keep your distance.