Homestead, Will Contests, and Car Titles: The Last of Smokey Susan

Last month, I shared the sordid tale of one of my least favorite clients, Smokey Susan.  Susan's case involved numerous aspects of Florida probate law, some of which I addressed in this post, here, and here.

In addition, the results of Susan's case were directly affected by Florida Homestead law. Basically, Joe could not leave his interest in his homestead (really 100% but swindled by Susan for 50%) to anyone other than Tami because Tami was under 18 at the time of Joe's death. For a more in depth review of Florida Homestead law, check out this post.

The thing which ultimately tore it for me with Susan was the shenanigans she pulled with the title to the Cadillac.  For more information about how to transfer a title to a car after the owner dies without probate, check out this post.

Lastly, Susan's case involved a will contest.  The basics of a will contest were addressed by Faye's Story, Part One, Part Two, and Part Three.

A short epilogue to Smokey Susan's story:

Whatever happened to Joe's remains?  Melanie skipped out as soon as she figured out she wasn't getting the Cadillac or the house.  Susan did pay for Joe's funeral.  But don't give her too much credit for that sole act of decency;  she charged Tami's half of the sale proceeds from the homestead with the funeral expense in the guardianship.

Like I said, Susan was a real piece of work.


Cheers, and Happy Wednesday. We have officially made it to the downhill side of the week!

Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Your Funeral: Who Gets to Direct the Details

Last week I shared the story of an old client, Smokey Susan.  Susan originally came to see me because the funeral home would not let her direct the disposition of her ex-husband's remains since there was another person claiming that right, and no clear winner to the dispute.

Susan really had no claim to any right to bury Joe:  they weren't married, and the fact that she was the mother of Joe's only child (a minor) was not very persuasive.  If no one else had claimed the right to direct disposition, Susan would have been okay.  The problem was Melanie's claim that under Joe's will, she had the right to make disposition decisions.

How could the dispute over what to do with Joe's remains have been resolved? The best way to avoid a problem at the funeral home is to execute an Appointment of Agent to Dispose of Bodily Remains.  In this document, you can name an agent as well as a successor agent.  You can also be as detailed or as nonspecific as you choose.

For example, I have clients who have very specific wishes with respect to burial versus cremation.  Along those same lines, many clients have very specific wishes with respect to their place of burial, or the treatment of their ashes.

You can also outline the type of service, if any, you want held in addition to other details.  As examples, I will share excerpts out of two of my favorite "directives":

I.     "I am to be buried in the family plot at the farm in Alabama, in the space between my mother and grandfather and I am to be dressed in the blue silk kimono my second husband brought me back from the War."

II.    "I do not want any type of service at the funeral home, or viewing.  Please bury me next to my wife, and have the preacher give a graveside service for family only.  On the following Saturday night, host a night in my honor at American Veterans Lodge # and open a $500 tab for my friends."

Both of these people are gone now, and their agents did as instructed.

I strongly recommend this document for couples when their children are a "Brady Bunch" or if their children fight and argue.  Often, deep resentments surface after the death of a loved one, and for some reason it starts at the funeral home.  I've had many a phone call from a distressed widow or widower who has found out at the funeral home that the stepchildren have very different ideas about where their deceased parent should be buried.  The strangest one was the case where the deceased had divorced the mother of the stepchildren 30 years prior, but the stepchildren wanted him buried next to their deceased mother (his ex-wife of 30 years) her rather than his current wife of 20 years!

Another way to avoid this situation is to purchase a prepaid funeral plan.  This allows you to decide many of the details in advance, and pay for it.

Many people think that an instruction in their will regarding their burial will suffice, and fifty years ago this was true;  however, the will has to be admitted to probate and the personal representative appointed before the personal representative has the legal authority to carry out your wishes.  Consider the time involved in finding an attorney, an appointment, preparation of the pleadings, and waiting on the court to enter an order and issue Letters of Administration. Even in the best of times, you could be facing a delay of 2-4 weeks, and that is only if everyone involved is on the same page.  If there is a dispute about the will, or there is no will and a dispute among the heirs about who should serve as personal representative, the delay could be months in duration. That's a long time to wait.


Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

A Tale of a Terrible Client--Smokey Susan

CAVEAT: Even though a lot of details are public record, the names and relevant identifying details of all persons, as well as some of the facts, in this post have been altered in order to maintain any potential attorney-client privilege.

Once I had a client named Susan.  She was a real piece of work. Don't cry for her. She totally doesn't deserve it.

Susan came to see me about her ex-husband, Joe.  She was trying make arrangements for Joe’s funeral, and claimed that a  "floozy" bartender named Melanie was trying to take control. Why did Susan care? Susan had a young daughter, Tami.  Susan's ex-husband, Joe, was Tami's adoptive father.  Susan and Joe were married and divorced two times.  Tami came along in between the first and second marriage, and Joe adopted Tami when she was about 5. No one had the authority to dispose of Joe's remains:  he wasn't married, had no living relatives other than Tami, and Tami was not 18.

At first, Susan presented very sympathetically.  Joe was a drunk, horrible person.  The second divorce came about because Joe had molested Tami.  Susan just wanted to protect Tami's interests, and Melanie at the dive bar down the street from his home was trying to steal Joe's estate from his young child.  Melanie claimed to have a will, but she would not provide a copy to Susan or to me.  Because Melanie had a will (she did show it to the funeral home) and because Susan was also claiming the right to dispose of Joe's remains as Tami's parent, the funeral home literally put Joe on ice and told Melanie and Susan to come back with a court order.

The first thing I did was file a Caveat for Susan on behalf of Tami in the probate court records on Joe's estate.  The Caveat insured that no one could do anything in Joe's estate without first giving Susan a 20 day notice.  Sure enough, Melanie filed a petition to administer Joe's estate just a few days later, and had to serve Susan.  I filed a motion to dismiss the petition, as well as an answer and counter-petition to invalidate the proffered will as the product of undue influence.  In other words, I filed a will contest on Susan's behalf. Last, I filed a petition to appoint Susan personal representative of Joe's intestate estate.

The only assets of any value belonging to Joe were a half interest as a co-tenant in his home, the contents of the home, and a Cadillac.  Susan owned the other half of the home, which was purchased by them during the second marriage.  By the time we got all of the initial motions and such before the court both Susan and Melanie had gone into the home and taken items of personal property and Melanie had taken possession of the Cadillac and was driving it (presumably with no insurance). Of course, Susan did not tell me before the hearing that she had taken things out of the home.  By contrast, I had heard extensively in person, on the phone, and in writing about Melanie having that Cadillac. 

A side note about Susan:  she was a heavy smoker.  We had to schedule her appointments so that no other clients were present so I could leave the door to my office open while meeting with her. Imagine the worst dive bar you've ever been in, multiply by 100, and then imagine that stink on one person.  That will give you an idea of how bad she smelled.  She was like Pigpen from Charlie Brown, with a haze of smoke, nicotine and tar buzzing around her at all times like an evil, migraine inducing force field.  Susan was a letter writer.  She would call me or come in, and then immediately follow up with a ten page letter which was nothing but a ramble and regurgitation of the conversation.  Invariably, the letter was trying to get me to agree with whatever harebrained idea she had hatched to get the Cadillac from Melanie.  Also invariably, the letter would smell so bad we would have to open it, and HANG IT IN THE OUTBUILDING BEHIND OUR OFFICE to air it out.  It would still stink afterwards, but it would be bearable. The letter would arrive, and the funk would precede it by 10 feet, minimum.  I never saw Susan when she didn't reek, have a tissue in hand, and she had at least one horrifying coughing fit per visit.  She was also actively sick every single time I saw her.  She even came to court while she had the flu.  I don't think I'll ever forget this aspect of the case. Susan was a one woman walking anti-smoking campaign.

Back to the hearing.  The court refused to appoint either party as personal representative and entered an order that the proceeding was adversary.  The court also entered an order prohibiting either party from removing things from Joe's home, and enjoining Melanie from driving the Cadillac (but allowing her to maintain custody of it for the time being). After the hearing, we filed a petition to determine homestead as to Joe's half interest as a cotenant in the home.  Because Tami was under 18, Joe could not leave his home to anyone else under the homestead provisions of the Florida Constitution.  Opposing counsel (who claimed to be a probate attorney) thought that Joe's will leaving everything to Melanie trumped Tami's homestead rights, which could not have been more wrong.

At Susan and Melanie's subsequent depositions, I first learned that during their second marriage, Joe had executed a will leaving everything to Susan.  The will also provided that if Susan was dead (which is how she would be treated post-divorce), Susan's sister was named as personal representative and trustee for Tami's benefit and Tami was the sole beneficiary of Joe's estate.  Melanie claimed that Joe adopted Tami solely to increase his disability benefits. According to Melanie, Tami had an ongoing relationship with her biological father who agreed to the adoption because he would not have to pay child support.  I also learned that a term of Susan and Joe's divorce was that Susan would deed her half interest in Joe's home to him, an act which she had thus far failed to do.  Melanie also testified that Susan routinely allowed Joe unsupervised visitation with Tami after the second divorce. 

Susan brushed off all of these facts:  she admitted letting her daughter visit with Joe after the divorce (she claimed he was "better"), she said Joe told  her she didn't have to deed him that half interest in his home, she didn't mention the will because she didn't like her sister and did not want her sister to get control of Joe's estate.  All Susan wanted to talk about, ad nauseum, was that old Cadillac.  I have often wondered if the Cadillac had something valuable hidden in it, considering the war Susan and Melanie waged over it.

Prior to his death, Joe had taken out a "title loan" on the car which remained unpaid.  Susan and I discussed her options: she could buy the lien, and we could file a replevin action and repossess the car to satisfy the lien.  Susan listened and understood (her stinky missives made the fact of her understanding very clear).  Instead of buying the loan, Susan went to the loan company and paid off the lien.  Thus, Susan got possession of the title which she then took to the DMV and totally misrepresented her relationship to Joe.  All she needed was a certified copy of Joe's death certificate and the original will she didn't like in order to walk into DMV with the car title and say she was still his wife in order to get the title put into her name. 

Susan showed up at my office and presented the new title as a fait accompli, expecting a pat on the back for a job well done.  This was the beginning of a very rapid end for me and Susan:  she was shocked that I was not happy with her clever thinking, and I was appalled at her disregard for my advice and the law.  I refused to file a replevin action for her and instructed her to that she had to immediately transfer the title back to Joe's name (albeit subject to her lien for the exonerated title loan). Susan refused to do so.  So, in due course, I terminated our relationship.

Susan went back to the attorney who prepared the "lost" will (that she didn't like) and an Order Determining Homestead was entered.  Tami never received a dime.  Susan sold the home within about a year of the order being entered to Tami's biological father. The deed was signed by Susan showed Susan as a co-owner.  How did she pull off that trick? Melanie dropped out as soon as she realized she was not getting the house. I was gone. Susan's new attorney did not know about the divorce agreement and so it looked like Susan owned half and Joe owned half. She even opened a guardianship for Tami, and represented that Tami only owned half (and more importantly, failed to tell anyone about her agreement to deed her half to Joe).  Then in the guardianship, Susan got all the proceeds from the sale (without telling anyone how the buyer was related to her and Tami) because she claimed to have been paying the mortgage and maintenance on the home (which was not the case when I represented her).

What happened to the Cadillac? Well, Susan filed a small claims action and repossessed the car from Melanie using the fraudulently obtained car title.  She also got a judgment for costs which Melanie ultimately had to pay.  Here again, she got away with this for most of the same reasons she got away with the house.  In addition, Melanie did not have an attorney, and must not have understood how Susan could only have lied to get the title.

Why didn't I intervene?  First, I didn't know about it until I went to look at the court records to write this post.  You fire a client and move on. The last pleading I saw in the probate was the Order granting my motion to withdraw. Susan sold the home and repossessed the car about a year later.  Second, even if I had known what Susan was up to, most likely I would not have been able to disclose anything to anyone in order to bring her lies and machinations to light.  In Florida, with very few exceptions, an attorney is obligated to keep the information obtained through representation of a client confidential. Attorneys are expected to err in favor of nondisclosure whenever there is even a question to disclose or not disclose. If I had known about the misrepresentation in the guardianship about Tami's interests in the home and the suit against Melanie to repossess the car, I would have at least called the Bar to get some guidance on my obligations to Susan.

Like I said, Susan was a real piece of work.  She has remarried twice in the intervening years. I could not bear to be within ten feet of her, so I find this fact particularly astounding. I looked Tami up on the internet recently, and it does not look to me like Susan had a transformative experience and became an exemplary parent. Poor Tami, she never had a fighting chance.

Coming up next week:  A post discussing the legal and procedural aspects of this story.

Have a great weekend!

Julie






Copyright 2013 Julie Ann Sombathy All Rights Reserved

The Story of Arnie and Ophelia

After a year of blogging, it finally dawned on me the other day that some of my old cases would make entertaining blog posts. So, this "story" will be a first in a series. (CAVEAT: Even though a lot of details are public record, the names and relevant identifying details have been altered in order to maintain any potential attorney-client privilege). Also, I will weave a little legal information in the story, but I'll try to keep it painless.

I once had clients early in my practice named Arnie and Ophelia Williams. When Ophelia died, they had just celebrated their 65th wedding anniversary. Sixty-five years! In my late 20's I thought that this was the most incredible thing I had ever encountered. Arnie and Ophelia were in their 80's. This is their story.

I met Arnie and Ophelia because they needed to do some estate planning. While they were old, both were mentally sharp. Arnie had a shock of white hair and brilliant blue eyes. Ophelia had a lot of health problems and Arnie had a gouty foot. Because of Arnie's foot and Ophelia's health, their insurance agent persuaded me to make a house call. They lived in a modest home, on a modest street, in a modest middle class neighborhood. They were worth millions.

Forty years earlier, they had lived in Virginia. Arnie worked at a manufacturing plant. Arnie received stock options as part of his compensation. While he was in his forties, Arnie retired and moved to Panama City. Arnie managed to parlay his stock holdings in the manufacturing company together with the investments he had made during his "working life" into a substantial portfolio by playing the stock market. He was a front runner in the whole "day trader" work from home movement of the early 90's.

The greatest sorrow of their lives was that they were never able to have children. Ophelia had no living relatives. Arnie had a nephew, Jerry, with whom they were close. Jerry lived out of state, but he visited regularly. I believe this part to be totally true because if there is one thing elderly clients will tell you when you are doing their will, it is which relatives come see them and which ones don't visit or call. [Go call your elderly relatives right now. This blog will be here in a half hour.]

So, Arnie and Ophelia executed Pour Over Wills and a Joint Revocable Trust with traditional estate tax planning for the time period.  The trust left everything to Jerry.  The Pour Over Will named Jerry and two friends of Arnie and Ophelia as their co-executors (in Florida we call the executor the Personal Representative).  Likewise, the trust named Jerry and the two friends as successor Co-Trustees. Soon after they executed their documents, but before we could fully fund their trust, Ophelia died. Arnie died less than 30 days later. I've always thought he died of a broken heart because all that was really wrong with him was that gouty foot. He just went to bed and never got better. At the time, I thought his death was the most tragically romantic thing, ever.

Most everything that was not in the trust was in just Arnie's name, so in the end we only had to probate Arnie's Pour Over Will to transfer the rest of the assets into the trust. Unfortunately for me and Jerry, when we opened Arnie's safe deposit box we found original stock certificates for 65 different companies. Each of these stock certificates ultimately required 3 medallion endorsed signatures. So, that was a total of about 200 endorsed signatures from 3 people living in 3 different states. It took months to accomplish and to this day remains one of the most frustrating tasks I've ever encountered in a probate.

Meanwhile, back in Virginia a woman was dying. She was in her 70's and had one child, Rose. Rose was in her early 40's with strikingly orange-red hair and brilliant blue eyes. She was also a child of tragedy, having lived her entire life without her father who had died before she was even born. Just before taking her last breath, Rose's mother motioned her close and whispered in her ear that "I have to tell you something. The man you thought was your father wasn't your father. Your father lives in Florida. There's a shoebox in the top of my closet with your name on it with everything about your father in it."

Eventually, Rose got out that box, hired an investigator and tracked down her father. She tried to call him several times, but lost her nerve and hung up. Her husband finally made the call for her. A man answered the phone and when Rose asked for her father, Arnie Williams, she was told that he had recently died.

Jerry is the man who had to give Rose that bit of news, but he did not know then her relationship to his uncle. Soon after that call, Rose called me. In the face of her incredible story, all I could tell Rose to do was hire an attorney in Florida. I also had to warn Jerry that he might not inherit anything at all.

See, Rose was potentially a Pretermitted Child. In layman's terms, that means a child of which the deceased person was unaware when they signed their Will. A Pretermitted Child is entitled to the share of the deceased's estate to which they would have been entitled under the intestate statute. For an only child, that would have meant 100% of Arnie's estate.

About a week later, a local attorney called me on Rose's behalf. She had been to Florida to meet with him in person (and to also meet Jerry--her long lost cousin). The first thing he asked me was "Did Arnie have crazy orange hair and blue eyes?"  In that shoebox Rose's mother had hidden in the top of the closet were pictures of a orange-red haired man in his 40's with brilliant blue eyes holding a baby which Rose knew to be herself. There were birthday cards for her 1st and 2nd birthday and letters. Jerry confirmed that Arnie had orange-red hair like Rose in his younger days. He also confirmed though family photos that the man holding baby Rose was most likely his uncle. Jerry does not think his Aunt Ophelia ever knew about Rose or the affair.

Because it was obvious that Arnie knew Rose existed, she was not a pretermitted child, and did not inherit anything from his estate. Jerry inherited 100%. When I last spoke to Jerry, he said that he and Rose continued to be in contact. Rose never held the inheritance against Jerry.

Through talks between Rose and Jerry comparing the respective lives of her mother and his uncle, Arnie's secrets were revealed. Rose's mother was married to Arnie's boss at the manufacturing company. She and Arnie had an affair, and Rose was the result. Before Rose was born, her mother's husband died in an accident at the plant. Although we will never know, I've always thought Arnie's somewhat early retirement and move had to of come about when baby Rose was very young since her hair and eyes were such an identifying trait. People back then were way better at keeping secrets, though, and also tended to turn a blind eye to such things. Who knows? The affair could have been a well kept secret or an "open secret." This part of Arnie and Rose's story will never be known.

So that is the story of Arnie and Ophelia, or rather, of Arnie and Rose.

The take aways from the story for me were:

1. Secrets rarely stay secret forever.

2. Attorneys should always ask their clients about children outside of marriage, and tell them an abbreviated version of this story in case there is a secret love child to be addressed.

3. No matter how well intentioned, the decisions you make as a parent do not always work out well.

4. If you create a secret like Arnie and Rose's mother did, maybe you should take it to your grave.

5. Call or visit your Elderly Relatives, they miss you and they're lonely. Ten minutes out of your day will totally make their week.

6. For the love of all, please put your stock holdings in an account. Do not hold original certificates. I cannot stress this one enough. It took years for $0.01 checks to quit arriving.

7. Naming more than two Co-Trustees or Co-Personal Representatives can result in unnecessary expense and hassle.

8. Address the potential of an unknown child in your will or trust to avoid what could have happened if Rose had either been dishonest or truly unknown to Arnie.

9. If you don't tell your estate planning attorney everything, including the embarrassing bits like a secret love child, your attorney cannot do an effective job.

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Copyright 2013 All Rights Reserved Julie Ann Sombathy