Wednesday, April 27, 2016
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You may not have produced over 30 albums, accrued over $300 million and an equivalent amount of fans as Prince, but, like the recent pop star, you too have a legacy that could impact many individuals around you. (more…)

Tuesday, October 27, 2015


In Lubin v. AT&T Ret. Sav. Plan (2015 WL 4397703), an adoption was not given effect in determining who would receive the life insurance benefits at issue.

In this case, Austin Hardy participated in a Retirement Savings Plan (“Plan”), which included a life insurance benefit. At his death, he was survived by his sisters, Pauline Lubin and Frances Koryn (Plaintiffs), and his biological daughter, Jennifer Krokey. Although Krokey was Hardy’s biological child, she had been subsequently adopted by a step-father. Under Florida law, a child who is adopted is the child of the adopting parent and ceases to be a child of the biological parent for all purposes. (more…)

Wednesday, November 27, 2013

Originally posted on

Testators may want to keep careful track of who has copies of their will and where those copies are.  If only a copy of a will – and not the original – is found, it may raise a question about whether the testator destroyed the original in an attempt to revoke it.  Such was the argument made by the caveators in Johnson v. Fitzgerald.  Let’s see why the Georgia Supreme Court felt like a copy was good enough to admit to probate in solemn form.

The executor of an estate offered a copy of a will for probate in solemn form, requesting that it be admitted to probate upon proper proof.  The original could not be found.  The testator’s heirs at law filed a caveat alleging that the will had been revoked by the testator’s destruction of it.

Under Georgia law, if the original of a will cannot be found for probate, there is a presumption that the testator intended to revoke the will.  But this presumption can be overcome if a copy is established by a preponderance of the evidence to be a true copy of the original and if it is established by a preponderance of the evidence that the testator did not intend to revoke the will.  Here, there was “ample evidence” that the testator intended for provisions in his will to continue in force.

Under the propounded will, $50,000 was bequeathed to a church for the use of its cemetery fund, $50,000 was bequeathed to an individual, and the will named a trust which benefited a foundation as the residuary beneficiary.  The Georgia Supreme Court highlighted the following evidence that supported a conclusion that the testator did not intend to revoke the will:

– The testator executed a document guiding the trust referenced in the will, and he later amended the trust;

– In discussions with his attorney about the trust amendment, the testator understood that his assets had grown to a point that the church named as the primary beneficiary of the trust might not have need for the full amount, and he wanted to give the trustees of the trust the flexibility to fund charitable contributions from the money that would pour over from the estate to the trust;

– The testator told the pastor of the church that he was leaving money for the cemetery fund in his will;

– The testator expressed disdain for what he considered his relatives’ greed, stating that he did not wish for them to have his money; and

– Prior wills were consistent with the propounded will insofar as they left money for the cemetery fund and excluded the caveators.

Thursday, February 21, 2013

What to do when you have no friends or family to whom to leave your estate? Why not do what Ray Fulk of Illinois did? Fulk had no family to which he wanted to leave his estate, so he executed a Will leaving $5,000 to his favorite charity, and the rest of his nearly $1,000,000 estate to his two favorite actors, Kevin Brophy (perhaps most famously known for his role in the 1977 television show, Lucan) and Peter Barton (who spent five years on The Young and the Restless in the 80s and 90s and starred in Linda Blair’s 1981 movie, Hell Night), whom he had never met. (more…)

Thursday, January 10, 2013

The Illinois Appellate Court in In re Estate of Doman issued a ruling on October 11, 2012 that once more clarifies why it is important to have a Will and, depending on circumstances, potentially a revocable trust. (See our prior posts on Why Do I Need a Will? (Part 1 and Part 2) and Why Do I Need a Trust?)

Trial Court Proceedings:

In the Doman case, Sara and Mark Doman were in the home stretch of their divorce when Mark died on July 4, 2011. On June 10, the trial court had issued a written dissolution judgment and reserved ruling on the ancillary issues, with a status hearing set for July 11. Sara’s attorney called the court on July 5 to inform the trial court of Mark’s death and the trial court entered a docket entry that stated, “Cause set for 7/11/11 is vacated. Cause is dismissed.”

Probate Court Proceedings:

On September 28, 2011, Sara filed a petition in the probate court stating that their divorce proceedings were dismissed and that she was Mark’s surviving spouse and seeking appointment as administrator of Mark’s estate. Sara’s daughter, Aimee (who was a child of Sara’s from a prior marriage whom Mark had legally adopted), filed a counter argument on October 13, arguing that the trial court’s June dissolution judgment on grounds only was a final judgment.

The probate court found the July 5 order only dismissed the ancillary issues, not the dissolution itself, and therefore, Sara was not Mark’s heir, appointing Aimee and her sister Bethany (also adopted by Mark) as co-administrators of Mark’s estate. Sara appealed. (more…)

Monday, November 5, 2012

Estate of Alfred J. Richard v. Commissioner, T.C. Memo 2012-173 (6/20/2012), is an unusual case in which the government sought to include 140 shares of preferred stock in A.J. Richard & Sons, Inc. (the “Company”) in the gross estate of the decedent, Alfred Richard (“Alfred”).  The shares were initially reported on the estate tax return, but it was later determined that Alfred did not own the shares that passed through his predeceased wife’s will.  The government’s arguments in opposition to the estate’s amended Tax Court petition reducing the number of shares of preferred stock from the 740 shares reported on the estate tax return by the 140 shares in Mrs. Richard’s name at the time of Alfred’s death, were each resoundingly overruled by Judge Goeke.

Mrs. Richard had died in 1997 at a time when she owned 140 shares of preferred stock in the Company and Alfred owned 600 shares of preferred Company stock. No probate administration was commenced and no estate tax return was filed for her estate. No shareholder meeting had been held and no shareholder vote had been taken from 1997 until 2004 when Alfred died, and the 140 shares of preferred Company stock still remained in Mrs. Richard’s name on the Company books at that time. (more…)

Thursday, May 31, 2012

As we told you a couple of weeks ago, the Supreme Court issued a decision in Astrue v. Capato, ruling that Robert Capato’s posthumously-born twins were not entitled to receive Social Security survivors benefits as his children. Now that you’ve had a chance to read the case, we thought we’d delve a little more deeply into the Court’s ruling.

Karen Capato gave birth to twins eighteen months after her husband, Robert Capato died of esophageal cancer. Prior to undergoing treatment, Robert froze some of his sperm in case the chemotherapy rendered him sterile. Despite aggressive treatment, Robert died in March 2002, a resident of Florida. Shortly after his death, Karen began in vitro fertilization using Robert’s sperm and conceived, giving birth to twins in September 2003.

Karen attempted to claim survivors insurance benefits on behalf of the twins. The Social Security Administration (“SSA”) denied her application. (more…)

Thursday, December 1, 2011

A Georgia court in a recent case, Villas at Stone Mountain Condo. Ass’n, Inc. v. Blair (Ga. App., 2011), No. A11A0912 (the “Blair Case”), held that the children and heirs of a decedent owed the homeowner association fees on the decedent’s condominium despite the fact none of the heirs wanted the condominium. The fees accrued between the decedent’s death and foreclosure of the condominium by the mortgage company.

In the Blair Case, the decedent died without a Will and the decedent’s children (also her heirs under Georgia law) never opened an estate administration with the probate court nor signed any documentation to disclaim ownership of the condominium. When a Georgia resident dies without a Will, which is known as an intestacy, title to real property automatically vests in the decedent’s heirs effective as of date of death subject to an administration of the estate. An heir may decline an inheritance if proper procedures are followed. While an heir is not liable for the debts incurred by a decedent prior to death, an heir is liable for ongoing expenses of any property inherited from the decedent.

Many individuals are intimidated by the administration of a decedent’s estate, or the probate process, and often feel that the government or local court system places too great a burden upon them after losing a loved one, particularly when the estate is small and the procedure appears unnecessary. Our current system of ownership, however, requires a title holder to property. When an individual dies, probate provides a temporary title holder of property, which does not pass by law or contract, and a standard procedure to collect assets, pay debts and expenses and ultimately distribute property to the proper beneficiaries or heirs. (more…)

Tuesday, October 25, 2011

A client recently asked me about the status of Georgia common law marriage, and in answering him, I thought it might be a good time for a reminder for all of us (including those in other states) that even if a state no longer recognizes common law marriage, usually such marriages remain valid if formed prior to the date of a statutory enactment prohibiting them. In addition, most states also recognize common law marriages formed in other states.

For example, the State of Georgia recognizes common law marriages formed prior to January 1, 1997 as well as valid common law marriages formed in other states.   Under Georgia law, a valid common law marriage may be formed between a man and a woman if they have (1) the capacity to make a marriage contract, (2) actually entered into a nuptial contract (usually proven by evidence of the couple holding themselves out publicly as spouses), (3) consummated their union by cohabitation, and (4) achieved all of the above prior to 1997.

Why is this important?   At death, spouses are entitled to certain rights, such as a right to years support (or “elective share” in some states) and a right to inherit from his or her spouse who died without a Will.   Achieving the status of “spouse” is critical in the ability to claim these rights which can be the basis of significant asset value.   Proving (or disproving) common law marriage is a very fact-sensitive endeavor, fraught with litigation potential.

The moral of the story?   Work with your estate planner to ascertain marital status with certainty before death so that desired outcomes can be achieved and unwanted outcomes can be avoided.  How long a couple has been in a relationship while in the state could be a critical fact.   Also, if the couple entered into the relationship while residing in another state which honors common law marriage, marriage likely is presumed in a state that does not currently recognize common law marriage.

Here is a link with more specific state information from the National Conference of State Legislators.

Thursday, September 1, 2011

We are rapidly approaching the tenth anniversary of the September 11th tragedy. There is much to be learned from an estate planning perspective in the aftermath.  

Many of those who perished died without having executed a Last Will and Testament. If you die without a Will, the state in which you are domiciled at the time of your death will determine under the laws of intestacy where the property you held in your own name will pass. It takes many people by surprise, but the list of intestate takers or heirs may not be the people you want to inherit and they might not take in the percentages or shares you would want. (more…)