Patti's Blog - Advocate for Elders, People with Disabilities and Their Families

Cold case: 1852 probate claim finally being closed

Excerpt from: The Community Press and Recorder (click for full article)

 

The Civil War was still nine years away when Hamilton County’s oldest continuing court case was filed in 1852 on behalf of a blind Cincinnati banker looking to commemorate his wife and his beliefs.

Now, 160 years later, the Probate Court case involving the estate of Ethan Stone is likely coming to a close.

And with the case’s end comes a surprising revelation: Some Cincinnati residents, it turns out, don’t own their own land.

“My guess is it’s the oldest case in the state of Ohio, possibly in the country, where paperwork has been continuously filed,” Hamilton County Probate Court Judge Jim Cissell said. The case “goes right back to the beginning of the Probate Court itself.”

The case is loaded with local history, including connections to two U.S. presidents, the creation of what became the University of Cincinnati and the establishment of 16 parcels of land where today’s residents, who think they own the land on which their homes sit, could be in for a surprise.

“The practical effect is ... current occupants of the properties who think they got ownership, didn’t,” said Steve Black, an attorney for Fifth Third Bank, a trustee of Stone’s estate.

Ohio Supreme Court officials said there was no way to determine if Stone’s case is the oldest active court case in Ohio.

In a clash of ancient and modern, Cissell has placed the case online where a trip through history is just a click away.

Marguerite “Maggie” Brunner doesn’t have to go online to see that history. She lived part of it.

Brunner, 79, bought her Lower Price Hill house in 1956 and paid monthly ground rent of $1.50 that went to Stone’s trust.

“They told us when we bought the house that somebody else owned the land,” Brunner said.

She and her husband, Louis, bought the two-family house at 2454 Galvin Ave. for $5,000. They refurbished it into a single-family home where they raised seven children and received visits from some of their 26 grandchildren and 40 great-grandchildren.

She sold the house in 2007 and moved next door. The house was torn down earlier this summer.

“We only paid them (ground rent) for a few years, and then we quit because they told us we didn’t have to any more,” Brunner said.

Attorneys representing Stone’s trust aren’t looking to collect unpaid rent. They’re seeking to have the trust dissolved – its assets are about $100 plus the 16 parcels of land that generate no income – and the court case ended.

The goal, Black said, is to give the homeowners the ground on which their homes sit. The 16 parcels are on River Road in Sedamsville, Galvin Avenue in Lower Price Hill and Elberon Avenue in East Price Hill.

DNA Test Confirms that Man is Sherman Hemsley's Brother

Excerpt from: TaxProf Blog (click for full link)

 

I previously blogged about Richard Thornton--the man who came forward claiming to be related to Sherman Hemsley.  DNA testing has confirmed that Richard Thornton is in fact Hemsley's half-brother.

However, Judge Patricia Chew refuses to consider the DNA results in the case because they were admitted after the October 15 deadline.  Mark T. Davis, Thornton's attorney, thinks the case is significantly weakened without the DNA results.

Minn. Court Strikes Down State Clause Disenfranchising Those Under Guardianship

Excerpt from:Elder Law Answers

(click for full article)

A Minnesota probate court rules that language in the state's constitution that prohibits all people under guardianship from voting violates the United States Constitution and is therefore invalid.  In re Guardianship of Erickson (4^th Jud. Dist. Ct., Minn., No. 27-GC-PR-09-57, Oct. 4, 2012).

Brian Erickson was placed under guardianship in 2009 because he suffers from schizophrenia and dysthymia with psychotic tendencies that make it difficult for him to perform many activities of daily living.  In July 2012, Mr. Erickson's guardian filed a petition with the Hennepin County Probate Court seeking a declaratory judgment clarifying that people under guardianship retain the right to vote unless a court order removes that right. 

The petition was filed because there is a conflict between Minnesota Statute 524.313, which states that "unless otherwise ordered by the court, the ward retains the right to vote," and Article VII of the state constitution, which explicitly states that all people under guardianship are not allowed to vote.  Mr. Erickson attempted to reconcile these two provisions by claiming that since the state constitution did not define guardianship, the legislature could "effectuate the constitutional mandates" by passing statutes that limited the state's ability to disenfranchise people under guardianship.

“I Don’t Have An Estate. Why Do I Need An Estate Plan?”

From Kraft Elder Law: (click for full article)

If you don’t have much money, why do you need to do estate planning? That’s a common question, and was addressed well in an article by author Deborah L. Jacobs. Here are excerpts from the article:

When I would tell people that I was working on a book about estate planning, many of them looked at me quizzically because they weren’t sure what I meant. Others said, “Oh, that’s not something I need, because I don’t have an estate.”

Contrary to popular misconception, you don’t have to own a big house to have an estate. Your estate consists of everything you own when you die, including your home, personal property, investments, bank accounts, retirement plans and any interests in a family business or partnership. Beneficiary designation forms control who gets retirement accounts, along with life insurance proceeds. For most other assets, you need a will or living trust that says who gets your stuff.

If you die without a will or living trust (“intestate,” in legalese), state law will determine how most of your belongings are distributed, and the result may not be what you would want. These laws establish a ranking of inheritors. Some newer laws say everything will go first to the spouse, then to children, parents and siblings.

But showing is better than telling. So I like to send people to a wonderful, free, interactive website that shows exactly what would happen in their situation if they died tomorrow without a will. The site is mystatewill.com. On the map of the United States at the top of the homepage, click on the abbreviation for your state–it includes all states (plus the District of Columbia) except Louisiana. Without asking for your name or any other identifying information, it steps you through a series of questions. Then it tells you what would happen if you die without a will.

9th Circuit: Marilyn Monroe's Estate Forfeits Publicity Rights Due to Tax Planning

From TaxProf Blog: (click for full article)

An enduring American celebrity, Marilyn Monroe continues to inspire both admiration and litigation a half-century after her death. At issue is whether appellants inherited a right of publicity, which was created and deemed posthumous by the states of California and Indiana decades after her death, through a residual clause in her Last Will and Testament. The will was subject to probate in the state of New York, which does not recognize a posthumous right of publicity. The issue of appellants’ rights turns on whether Monroe was domiciled in California or New York at the time of her death. We conclude that because Monroe’s executors consistently represented during the probate proceedings and elsewhere that she was domiciled in New York at her death to avoid payment of California estate taxes, among other things, appellants are judicially estopped from asserting California’s posthumous right of publicity. We therefore affirm the district court’s order so holding. ...

Because Monroe died domiciled in New York, New York law applies to the question of whether Monroe LLC has the right to enforce Monroe’s posthumous right of publicity. Because no such right exists under New York law, Monroe LLC did not inherit it through the residual clause of Monroe’s will, and cannot enforce it against Milton Greene or others similarly situated. We observe that the lengthy dispute over the exploitation of Marilyn Monroe’s persona has ended in exactly the way that Monroe herself predicted more that fifty years ago: “I knew I belonged to the Public and to the world, not because I was talented or even beautiful but because I had never belonged to anything or anyone else.”

Estate Analyst: Giving It All Away

From Wealth Strategies Journal: (click for full article)

Shortly before her death, a Benedictine nun honored her vow of poverty by anonymously redirecting an inheritance she was about to receive.

An affluent  socialite with numerous children, friends, and a full life renounced her wealth and became a nun. Wealthy people have been known to give away the vast majority of their possessions. Some people even give away their lottery winnings.

But giving away wealth has ramifications. There are transfer tax liabilities and estate planning concerns. Here is a collection of examples, their resulting financial planning issues, and some Charitable Giving Briefs.

State's Claim Against Estate Not Time-Barred Because Notice of Death Not Given

A Tenness

ee court of appeals holds that the state's claim against the estate of a Medicaid recipient is not time-barred because the recipient's heirs never gave notice of the recipient's death or filed a release once the estate was opened, so the statute of limitations did not begin to run. In re Estate of Stidham (Tenn. Ct. App., No. E2011-02507-COA-R3CV, Aug. 23, 2012).

Omer Stidham transferred his property to a revocable trust. He entered a nursing home and received Medicaid benefits until his death in October 2008. His heirs did not attempt to administer his estate because the estate was insolvent except for the property in the trust. In November 2009, the state filed a petition to appoint an administrator of the estate, alleging that it was entitled to reimbursement for Medicaid benefits.

The heirs argued that the claim was time-barred because it was filed more than one year after Mr. Stidham's death. They also argued that the state could not recover the property because it was not a part of the estate. The state argued the one-year statute of limitations did not bar its claim because it did not receive notice of Mr. Stidham's death as required under state law. State law also provides that before a probate estate can be closed, the personal representative must file a release evidencing that Medicaid benefits have been paid. The trial court ruled for the state, and the heirs appealed.

The Tennessee Court of Appeals affirms, holding that the claim was not time-barred and the property was recoverable. According to the court, because the heirs did not give the state notice of Mr. Stidham's death or file a release once the estate was opened as required by state law, the statute of limitations did not begin to run. The court also holds that property in a revocable trust is recoverable by the state for the payment of Medicaid debts.

Speak for Yourself, While You Can

From Wall Street Journal: (click for full article)

Parents, it's time to be an adult when it comes to talking to your kids about your late-in-life planning.

Many times the burden of managing a parent's deteriorating health or financial situation means an adult child has to step into their parent's shoes.

But parents often can accomplish more by stepping into their former role and taking the lead. Doing so can head off divisive—and costly—family feuds.

The primary task is providing guidance for the possibly difficult times ahead: communicating your wishes about health care and a funeral, information about things like finances, your will and what to do with the family home.

"I've seen situations where the closest of families were torn apart by fights over items, that if sold, would cost a fraction of the legal fees," says Philip Bouklas, a New York City attorney who specializes in estate planning.

Death and Foreclosure

From Lansing City Pulse: (click for full article)

We’ll never know how Steven Rigby would have wanted this to go down. We do know the Ingham County treasurer and his relatives disagree on how it should.

Rigby’s home and his personal possessions have ignited a bitter debate between relatives and the Ingham County Treasurer’s Office over who gets what following Rigby’s suicide this spring. At stake are prime real estate property valued at a quarter of a million dollars on Lake Lansing, personal possessions and peace of mind following Rigby’s death, whose body went undiscovered for up to 34 days — during which time the family says it missed the chance to pay the delinquent property taxes and avoid foreclosure — in his 70-year-old, white one-story house near a cove on the northwest side of Lake Lansing. He was 58.

Painter Thomas Kinkade's estate battle centers on validity of handwritten wills

From MercuryNews: (click for full article)

The dispute over Thomas Kinkade's multimillion-dollar estate has come down to two barely legible wills that leave his girlfriend his mansion and $10 million, and three burning questions: Did he write them? Was he coerced? And, finally, as the letters state, was he really of "sound mind and body"?

A judge will start considering those issues next month. And if the case goes to trial, whether in open court or private arbitration, expect a parade of experts, drinking buddies and relatives to weigh in.