Executor's job 'big and thankless'

BY JOHN POYSER 

John Mitchell died on June 6, 2009. A year later his beneficiaries were up in arms. Why? They thought the process was taking too long and wanted their money.

The executor, his nephew, tried to move things along as quickly as possible. He had to take care of dozens of details. Some were urgent, included finding the will and making funeral arrangements. Others were less so, like emptying the apartment and asking for a refund of the damage deposit, cancelling credit cards, distributing heirlooms and going through the deceased's papers. Some were important, but could wait until later in the process. Those included applying for probate and filing a year-of-death tax return.

It took a month or two before the beneficiaries started asking questions.

The lawyers could not prepare the application for probate until the assets were identified, inventoried and valued. That took letters to and from several banks and financial services companies. It took six months before the lawyers were able to obtain a grant of probate . Until that grant was in hand, many of the banks and other asset holders refused to deal with the executor.

By the time six months had passed, one or two of the beneficiaries were harassing the executor. He was getting snarky e-mails.

It was taking time to have the assets liquidated. Each bank and other asset holder had its own set of forms. They kept sending them back, and asking him for more or better paperwork.

By the time a year had passed, one of the beneficiaries was building a new garage . Another had financed the purchase of a boat . The two turned up the heat on the executor .

Most of the work on the estate had been done by that time, but not all of it. The executor was still waiting for the final word on the taxes.

By the time a year-and-half had elapsed, one of the beneficiaries threatened to sue.

At that stage, the executor prepared "accounts" for review by the beneficiaries. Accounts are a detailed statement of all of the money collected and paid out during estate administration. Each beneficiary was asked to approve the accounts before the money would be sent out. Some of them dragged their heels.

It took two years before everything was done, everyone had signed, and all of the money went out.

This story is one that repeats itself over and over. Handling an estate takes longer than people think it will.

There are lessons in this for executors. First, get on the taxes, hard and fast - they take the longest. Second, manage the expectations of your beneficiaries. When they ask you how long the estate will take, say "two years from beginning to end - but I will try to get it done faster if I can." Third, try to surprise the beneficiaries with an interim distribution. That step involves distributing some percentage of the estate midstream. That might mean distributing half of it at the one-year mark.

There are lessons here for beneficiaries, too. Don't spend the money until you have it. Also, remember the job is big and thankless. Cut the executor some slack.

For more information on these matters please, call our office at 305-548-5020.

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Adoption in England

From the BBC:

A Liberal Democrat MP is claiming up to 1,000 children a year in England are being adopted for the "wrong" reasons and should stay with their families.

John Hemming says the threshold for taking children into care is also often too low.

He is calling for a parliamentary inquiry into the secret court decisions that lead to many adoptions.

But his claims have been strongly disputed by the government's adoption adviser Martin Narey.

Both men have been giving evidence to the Commons Education Committee inquiry into child protection.

For more information on these matters please, call our office at 305-548-5020.

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Is Marriage Becoming a Thing of the Past?

by J. Benjamin Stevens

According to a recent article by the Associated Press, couples are becoming increasingly less likely to take the plunge into marriage. One recently single woman described what is the both the benefit and the problem of the trend towards cohabitation, "You start to see how people handle confrontation, financial realities, challenges, the housework load. If we had been married we would have been divorced, or fully on our way."

Heading into 2012, barely half of all adults in the United States are married, and the median age at the time of a first marriage has never been higher - slightly more than 26 years old for women and nearly 29 for men. As a comparison, in 1960, the number of adults married was dramatically higher, a full 72 percent. By the year 2000 that number had fallen to 57 percent and today it's only slightly higher than half at 51 percent, according to the Pew Research Center.

Experts believe the percentage of married adults could dip below 50 percent for the first time in a few years as the number of younger couples and single parents continues to increase. Just from 2009 to 2010 the number of new marriages in the U.S. fell by 5 percentage points. While this particularly steep drop may be partially attributed to the economy, the larger trend still holds.

This decline in marriage rates is widespread but is especially evidence among young adults. Of those between the ages of 18 and 29, nearly three out of every five were married in 1960, today it's only one in five.

Another dramatic marriage statistic relates to education levels. According to Pew Research, nearly two-thirds of all adults with college degrees, or 64 percent, are married, compared with only 47 percent of those with high school degrees or less. In 1960, college grads and those who had not gone beyond high school were almost equal with regard to their chance of being married.

Race also impacts the likelihood of tying the knot. Pew found that 55 percent of whites are married compared to 48 percent of Hispanics and only 31 percent of blacks.

Though marriage may be on the retreat, it's unlikely to be totally abandoned. Stephanie Coontz, who wrote "Marriage: A History" and teaches family studies at Evergreen State University said that "We as a society have to recognize that people do still get married but cycle into marriage later and may cycle out of marriage." Coontz added that she thinks "marriage is perceived as a very desirable good but no longer a necessity." Backing this thought up another Pew survey found that while nearly 40 percent of respondents said marriage is becoming obsolete, 61 percent of those who were not married would like to be someday.

-For more information on these matters,please call our office at 305 548 5020.

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Common-Law Spouses and Estate Planning

by familyllb

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Common-Law Spouses and Estate Planning

More and more these days, the distinction is becoming increasingly blurred – both societally, and legally – between partners who have formally married each other and those who are living in common-law relationships. This is true in both in family law legislation (which in most cases confers similar benefits on parties to both kinds of relationship), and in Canadian court cases in which judges are asked to examine whether the purported distinction still holds valid in our progressive society.

However, there is at least one legal area in which the distinction remains firmly entrenched in Ontario: Estate law.

More particularly the current law in Ontario dictates that, unlike the situation between legally-married spouses, a surviving common-law spouse does not automatically have rights to a partner's estate upon that person's death. Instead (and absent careful Estate-planning measures that make the entitlement clear), that surviving common-law spouse may have to commence a legal action against the deceased partner's estate.

This litigation will normally involve a claim for "dependant support" under the Succession Law Reform Act, which allows any "dependant" of the deceased to claim support in cases where adequate provision for support has not been made. Common-law spouses qualify as "dependants" for these purposes, and the court has broad power to grant various forms of relief, including the transfer or property or an order allowing the surviving spouse to continue using or occupying property.

In addition to these measures, the surviving common law spouse may also have a right to argue that he or she is entitled to equitable (as opposed to legal) ownership of property. These rights might arise as a result of the principles of unjust enrichment and can include recourse to the concepts of resulting or constructive trusts, for example.

But irrespective of which of these courses of action the surviving spouse might have to be pursued, they can be costly. Moreover, they usually involve unneeded contention and aggravation, particularly at such an emotional time.

This situation relating to Estates is consistent with other Family Law areas as well: As I reported a few months ago in "The Supreme Court of Canada decides that Common-Law Couples who split up deserve their fair share", http://bit.ly/uxvelS ,the Supreme Court of Canada has recently clarified the law relating to common law relationships and the concept of unjust enrichment, in its single judgment in the cases of Kerr v. Baranow, and Vanasse v. Seguin. Although those were not estate planning cases, the decision confirms the fact that in Canada, common law spouses are still treated differently from a legal standpoint than "formally" married ones, and – when there is no legislation to govern the situation – may have to rely on common-law principles to obtain a fair result.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. 

 

For more information on these matters,please call our office at 305 548 5020. 

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Report: Kobe Bryant 'Deeply Depressed' Over Divorce Situation, Still Trying to Save Marriage

by Ricky Doyle

Kobe Bryant's wife, Vanessa, may have filed for divorce, but the NBA star reportedly still hasn't given up when it comes to trying to save his marriage.

TMZ reports that Kobe is "deeply depressed" about the current situation because he's concerned with how his two daughters, Natalia and Gianna, will handle growing up in two separate households. Natalia will turn 9 next month, while Gianna is 5.

Vanessa Bryant filed for divorce on Dec. 16, more than ten years after the couple got married. Vanessa stood by Kobe back in 2003 despite sexual assault charges -- which were eventually dropped -- being filed against him. Vanessa reportedly cites "irreconcilable differences" as the reason for the divorce. She reportedly grew tired of Kobe's unfaithfulness. No prenup was signed before the two wed.

According to TMZ, Kobe's family was unaware of his unfaithfulness, but they hope the couple can find a way to get along -- even if it's just for their children's sake.

For more information on these matters,please call our office at 305 548 5020.-- 



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Custody and Visitation Issues for Grandparents

BY JENNIFER KING

It's hard to believe that it's been more than two months since Michael Jackson died, particularly since the news stories are still coming fast and furious about all aspects of his life, his death and his children.

When Katherine Jackson, Michael's mother, was granted permanent custody of her three grandchildren, it spotlighted a situation that's become increasing common. More and more grandparents have custody of their grandchildren.

The case with Michael Jackson's kids is interesting because their biological mother is alive. If someone is a fit parent–they're alive, willing and able to care for their child–then courts usually want to grant custody to that parent. A grandparent usually has no legal right to custody if the child's parents are fit, nor would a court award custody to grandparents just because they would be better custodians of their grandchild.

Given that Katherine Jackson was awarded full custody of her grandchildren without a protracted court battle, it's safe to assume that the children's biological mother voluntarily decided to give up her custody rights. From a legal perspective, when the custodial parent dies, then custody of the child automatically goes to the non-custodial parent, unless he or she has been found to be unfit. Even in states that allow grandparents to seek custody of a grandchild who is not in the custody of a parent, the mere presence of the child with the grandparents at the time of the custodial parent's death does not add to the grandparents' rights.

Now that Michael Jackson's children have been placed with their grandmother, if their biological mother wanted to regain custody, she would have to show that the change is in the best interests of the children and show a change in circumstances sufficient for a change of custody.

The US Census Bureau says that 9 percent of all children in the United States live with at least one grandparent. Of those children who live with grandparents, 77 percent also have a parent living in the house with them, but in 23 percent of the cases, the parent is absent. If a child has lived with his or her grandparents for an extended period of time, the grandparents may have a strong claim to custody because their grandchildren may view them as parents.

The laws relating to grandparents and custody vary from state to state. For example, in Texas, a grandparent can only seek custody of a child if the parent with custody has voluntarily given up possession of the child. In New York, a grandparent cannot seek custody of a grandchild if the parents voluntarily give up their parental rights and the grandchild is made available for adoption.

Visitation Issues

When you become a grandparent, you'd probably never expect to have to go to court to request custody or visitation rights to your grandchild. However, it's becoming increasingly frequent.

Traditionally, courts used to only grant visitation rights to a child's parents. Today, the laws have changed. Currently, most state laws give visitation rights to grandparents if it is in the child's best interest to maintain an established relationship.

Various circumstances will give grandparents the right to request visitation. In most states, the general rule is that visitation will not be granted in an ongoing, intact marriage. Two common circumstances that permit grandparents to request visitation are the death of a parent and the parents' divorce. In adoption cases, some states allow visitation following adoption, but other states say that grandparents' rights are terminated by the adoption.

Custody and visitation issues can be very complex. If you are a grandparent who is seeking custody or visitation rights, it makes sense to talk to an attorney with child-custody experience in the state where your grandchild lives.

For more information on these matters, please call our office at 305 548 5020.

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Divorce, Custody and Visitation: When a Child Wants a Change

 BY ART BUONO

Sometimes a child will sour on one parent after divorce. This can create problems in custody or visitation arrangements. So what happens when a child no longer wants to spend time with one of the child's parents?

 
• As children mature, their feelings towards a parent may change
• Older children of divorced parents have a say in custody and visitation arrangements
• Parents have a duty to make custody and visitation work – or change it

 

A child's attitude towards a parent may change over time. A number of different things can cause this. Some of these things can support a modification in custody or visitation by themselves.

For example, mistreatment by a parent can support a change in custody. So can endangerment or illegal activity, like alcohol abuse and illegal drug use. Obviously these causes can very well sour a child on a parent.

But what about situations not involving this kind of obvious misconduct? Kids don't always get along with both parents equally well. This can be especially true after divorce. So just how much does achild's preference factor into custody and visitation?

Older Children Have a Say in Custody and Visitation

Cathe Evans Williams has practiced family law for 16 years in Illinois and Indiana. She's the author of "Divorce For Ladies, Not For Losers: A Guide For a Healthy Not Harmful Journey." She describes the book as not about "winning," but about keeping integrity in divorce and not giving all your money to lawyers in an effort to "get back" at your spouse.

According to Evans Williams, "A court will always act in the best interests of the child in setting or changing the terms of child custody and visitation. Once a child reaches the age of 12 or so, the court will really begin to listen to the child's stated preferences in making those decisions."

While the child's interest is foremost, if a child wants to change a custody or visitation arrangement, the rights of the parents, as set out in the custody order, still must be taken into account. "If there are problems with the existing arrangements, the court will likely order the parents to mediation to fix them. If the parents and the child can't come to terms, things will finally be resolved by the court.

"A lot of factors go into the decision. Does the child want a change for legitimate reasons, or is it just that mom enforces a curfew and other reasonable discipline, while dad is the "fun" parent who lets the child get away with things? The child – and the parents – may need to meet with a social worker or other counselor to get at the real reasons for the problem and work out a solution."

Just Say Go?

Parents have a duty to see that their child abides by the custody and visitation arrangements. As Evans Williams points out, "Even with a child of 14, for instance, the custodial parent has an obligation to ensure the child goes on scheduled visitation. If the parent fails to do so, a court could take a number of steps to ensure compliance. For example, if the parent says he or she can't make the child behave along these lines, the court can order the parent to take parenting classes to learn how to regain control of a stubborn child. So there are a number of ways to enforce custody and visitation orders."

Parenting is difficult in the best situations, and especially so in and after divorce. Sticking with custody or visitation arrangements – or changing them where necessary – is something the parents, and if necessary with help from their lawyers, must strive to do.

For more information on these matters, please call our office at 305 548 5020.

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