Roman Blum died in New York last year at 97 years old. He was a Holocaust survivor and a successful real estate developer worth over $40 million.

Not only did he die intestate, which means without a will, he apparently has no living heirs to even inherit the property.

When you die intestate, the state decides how your property is distributed, based upon state law. Each state’s law is different. Generally, there is some sort of division of property between the decedent’s surviving spouse and children. The amount each receives often depends upon whether the children are the children of the surviving spouse, or from a previous relationship. If there is no surviving spouse and no descendants, then the intestacy law usually dictates that the property is to be distributed to the closest living relative, based upon the Table of Consanguinity.

However, according to the story, they can’t find any relatives at all. When a person dies intestate and without heirs, then the property could escheat to the state. As my old property professor used to say, “They call it escheat because you got es-cheated!”

With simple estate planning, Mr. Blum could have left the entire $40 million to a charity – tax free. Now it will just go into New York’s general coffers, or to some lucky 8th cousin that they eventually find.

One of the things that’s becoming more and more frustrating for trusts and estates lawyers in Florida is the refusal of banks and other financial institutions to accept properly drafted powers of attorney.

A power of attorney is a document in which a person (the principal) grants another person (the agent or the “attorney”)  the authority to act upon the principal’s behalf. A power of attorney can be limited in scope – such as it only grants the power to the agent to sell a specific piece of real estate. Or, the power of attorney could be extremely broad, in which the agent is granted the power to do almost anything and everything, including change the beneficiaries of life insurance policies and retirement accounts, create or modify trusts, and give away all of the principal’s property. Of course, the agent is limited by their fiduciary duty to the principal in all of this.

Section 709 of the Florida Statutes sets forth the various rules regarding powers of attorney. Despite the clear language of the law though, it’s often very difficult to explain to banks that they are required to accept them. I understand their fear, but things are getting ridiculous. In fact, Florida recently changed its law so that Florida Statute § 709.2120 provides that a third person who improperly refuses to accept a power of attorney is subject to a court order, plus liability for damages and attorneys’ fees. In other words, if you violate the statute and refuse to accept the power of attorney, I can sue you and if I win, you will have to pay my attorneys fees.

Recently, I was about to sue a bank for their refusal to accept a power of attorney, when we came to a “compromise.” The bank would not, under any circumstances, allow the appointed agent to manage the account at their institution, but they would allow the agent to close out the account and withdraw several hundred thousand dollars and bring it to another bank. So losing the account and taking the risk that all of the money will be stolen was ok, but writing $100 checks for groceries was not.

Refusing to Accept Power may be Frivolous

Not only are probate attorneys tired of it, but courts are getting frustrated also.

In the recent case of Albelo v. Southern Oak Insurance Company (3rd DCA Feb. 6, 2013), the home of plaintiff, Maximiliana Albelo –who is in her 80s– was burglarized. At some point before the burglary, she duly executed a durable power of attorney, appointing her son. A power of attorney is a durable power of attorney if it survives the incapacity of the principal. Under the authority granted to him under the durable power of attorney, Maximiliana’s son filed a sworn proof of loss with the insurance company.

The insurance company refused to accept the proof of loss executed by her son as agent. Not only that, they said it was fraudulent. To make matters even worse, Southern Oak seems to be saying that Maximilana was required to have a guardian appointed for herself.

This of course, is ridiculous. The whole point of executing powers of attorney is to avoid guardianships. The Court in this case pointed out that the rejection of the power of attorney and the argument that a guardian was needed was frivolous. That means that both the insurance company and its attorney has to pay Albelo’s attorney’s fees.

Hopefully this case will help persuade financial institutions to start accepting powers of attorney, but I’m not holding by breath.

She’s 30 years old. Thrice married*. A mother of twins. She never graduated college. I don’t think she ever had any business training. She loves drag racing. 

And she’s worth over a billion dollars.

Apparently, Lynsi has been recently “outed” as the owner and heir to the In-N-Out burger chain.

Now if you’ve never been to California (or recently Dallas) before, you might not know what that is. Apparently, it’s a very large and privately owned burger chain.

According to Business Week, “when Harry Snyder, who founded In-N-Out with his wife, Esther, in 1948, died in 1976, his son Rich became president, expanding the chain to 93 restaurants from 18. Torres’s father, Harry Guy Snyder, took over following Rich’s 1993 death in a plane crash at age 41. The chain expanded to 140 locations under Guy, who died at age 48 of a prescription-drug overdose. Esther Snyder maintained control of the company until her death in 2006 at age 86, which left Torres the sole family heir.”

I’ve seen stories that she “owns” 50% now and will receive 50% when she turns 35.

As an estate planning attorney I have all sorts of questions. What kind of plan did her grandparents have? How about her father? How did they pay the estate tax without having to sell off parts of the business? Does she own the business outright or in trust? Who is controlling the other 50%? Who are the trustees? Did her family do any lifetime transfers of the assets to her? etc.

Of course, I’ll probably never know the answer to these questions. But if she’s looking for an estate planning attorney. . .or for a fourth husband for that matter, my number is on my website.

*An earlier version of this post said that she was “thrice divorced.” She is still married to her third husband.

By digital assets I mean your email, Facebook, Twitter and other accounts. What about your iTunes music purchases? You Amazon Kindle books? Are you allowed to transfer your music to your beneficiaries?

How do you access your bank accounts or credit card accounts? How do you pay your bills? How do you get your bills? Do you still write checks?

Have you thought about what will happen with all of that when you die?

Who will have access to your email accounts? How will they get in? Will they be authorized? If your Personal Representative contacted Google and requested access to your email accounts, will Google comply?

How do the federal Electronic Communications Privacy Act (ECPA) and the Digital Millenium Copyright Act (DMCA) apply? What about the terms of service by the internet service providers?

These are all complicated issues and a developing area of the law. For much of this, there is no answer just yet.

The American Bar Association Solo and Small Firm Division appointed me as an advisor to the Uniform Law Commission committee which is drafting the model law on Fiduciary Access to Digital Assets. The Uniform Law, once it is finished, is intended for the individual states to adopt on their own to deal with these issues.

I am attending my second meeting. The issues are more difficult than I thought. We have representatives from Google, Facebook, Microsoft, and other online companies in the room, and the needs of the trusts and estates attorneys is in direct conflict with what they say are the federal privacy standards imposed upon them.

This is too complicated to write about in a short blog post, but I’ll try to keep updating on individual issues as things develop.

Kevin Brophy was one of two obscure actors who will split a $1 million estate of a man he never met.

This is a new one. I’m always hearing interesting stories about the various people that people leave their estates to. Family, mistresses, charities, their pets, nothing surprises me.

Until now.

According to the Star Journal-Register of Springfield, IL, a man left his estate, estimated to be worth around $1 million, to two actors he never met, and who no one has ever heard of (except him).

Kevin Brophy and Peter Barton don’t have the most extensive or impressive IMDB database listings, and have no clue why Ray Fulk of Broadwell, Illinos left them 50% his estate each, which includes a farm that may be sold for $1 million.

But judging by their lack of work, they could probably use the money.

I think I’ll troll IMDB to find someone who appeared in a single episode of Family Ties in 1984, and change my will to give them everything.

I mean literally, what are my processes and procedures?

These posts probably will be of interest to very few people – possibly to no one other than me. That’s ok. It’s my blog. You don’t have to read it if you don’t want to.

Drafting Documents the Right Way

When it comes to drafting estate planning, probate, or other legal documents, everyone uses some sort of form to start out with. Most of the provisions of these documents are boilerplate. However, and importantly, not all. A good lawyer needs to know not only which boilerplate provisions to include and which not to include, but also, when and how to craft the non-boilerplate provisions of the documents.

I know that some law firms use “word processors” to type their documents. The attorneys will give instructions, sometimes through dictation, to the word processor, who will then go through and assemble the documents. This could be a lengthy and time consuming process, and subject to the typos and other errors of the word processor.

I use “assembly programs” to draft my documents. Instead of piecing together old forms and copying and pasting, I enter the data into sophisticated computer programs, answer a number of questions, and the programs assemble and create a will, trust, power of attorney, living will, petition for administration, etc.

I am currently using two different systems. I use Interactive Legal’s Wealth Transfer Planning to draft most of my estate planning documents, and Westlaw Doc & Form Builder (formerly Prodoc) to draft my probate administration documents.

It’s important to note a few things. I never accept any assembled document as a “final” product. That’s what makes an attorney different than a document assembly company like LegalZoom. I don’t sell documents. I sell advice and solutions. I know the questions to ask the client, and how to craft each document for the particular circumstances.

Also, this is not much different from what attorneys without computer software do – they rely on people, and I rely on technology. It’s just that I think my way is cheaper, faster, and more accurate.

I’m not surprised.

These gigantic international law firms have gigantic international clients – like GE and Microsoft and Apple. Their partners charge these clients tens of millions of dollars a year. Estate planning is more of a family oriented practice. Sure, there can be some very rich families, but they aren’t going to be generating the same revenue as the partner who represents ATT.

That’s why estate planning practices thrive in smaller law firms or solo practitioners.

From the article: [the surviving spouse's] biggest obstacle: the checking account. Her bank, HSBC, told her it couldn’t remove her husband’s name from the joint account. Instead, she would have to close it and open a new one, even though the British unit of the same bank had removed his name from a joint account held in the U.K.

Another person in the article: “I went to the bank and told them I needed to take [his deceased spouse's] name off the account. I go home and my electronic banking was gone,” he says. “I just expected everything to roll over and her name to come off and my name to stay on. I didn’t expect my electronic banking to vaporize.”

Here’s the issue. Banks are huge pains in the asses.

On one hand, I understand that they are holding money and don’t want to give it out to the wrong person. However, I’ve found that they often don’t know the law, or don’t follow the law. It’s becoming more difficult to get banks to honor powers of attorney, to open certain types of estate accounts, to give information to attorneys who are authorized by their clients to receive it, etc.

I don’t have a solution just yet – just a bit of venting. It is a good article though. If you’re interested in probate you should check it out.

Now, according to the National Law Journal, the Illinois Attorney and Registration and Disciplinary Commission filed a complaint against patent and trademark attorney attorney Joanne Denison, because of her “probate blog.“

Yes, you read that right. Why is a patent attorney writing a probate blog?

According to the complaint, and the NLJ story, Denison’s posts describe a contested guardianship in which she at first, personally represented one of the litigants. However, on December 7, 2009, the Court disqualified her from representing [one of the parties] due to the fact that Denison notarized the signatures of her client and the Ward (who had not yet been declared incapacitated) on a document that gave her client the Ward’s entire interest in a lawsuit at a time when the Ward may have been suffering from dementia.

Two years later, while the case was still ongoing, Denison began her blog marygsykes, with “Mary G. Sykes” being the name of the incapacitated person in the above referenced case. The ethics complaint cites to a number of Denison’s posts in which Denison accuses the judges, the probate system, and the guardians ad litem of being “corrupt.”

I’ve read a bit of Denison’s blog and one thing is for sure – she is angry. But she is angry at what she sees to be major injustices in the Guardianship systems, both in Cook County, and elsewhere. More recently, she is angry at the Illinois Attorney and Registration and Disciplinary Commission disregard of the First Amendment.

I certainly would never call my local probate judges “corrupt.” First, because they’re not, and second, because I value my livelihood. Ms. Denison wrote a large volume of lengthy posts. The complaint seems to cherry pick some of the more incendiary language with the intent of shutting her up.

Although I don’t necessarily agree with her tactics, as a blogger who is in favor of more free speech for attorneys vs. less, I’m rooting for Ms. Denison. At least for now.