Feb 26, 2020

Kirk Douglas, Leading Man On and Off Screen, In Life and Death

Silver screen icon Kirk Douglas passed away on February 5 at the age of 103. He left behind his wife of 65 years, Anne; three sons, Michael, Peter and Joel; several grandchildren and one great-grandchild. Douglas was as spectacularly charitable in death as he was in life, leaving most of his $80 million estate to charity.  

Born Issur Danielovitch, Douglas was one of seven children raised by impoverished immigrants from present-day Belarus. He grew up in Amsterdam, New York, a small town near Albany. His father Herschel was unable to find work at the town's mills because they did not hire Jews, and so he became the town’s “ragman,” collecting and selling junk. Despite the humble circumstances, Douglas recalled that his mother, Bryna, was generous: "Sometimes we didn't have enough to eat, but very often there would be a knock at the door and it would be a hobo wanting food, and my mother always gave them something,” he said in a 2015 interview. “My mother said to me, 'You must take care of other people.' That stayed with me."

He estimated that he had no less than 40 jobs before his film career took off, including washing dishes and delivering newspapers. He served in World War II as a communications officer of Patrol Craft 1139 and was injured in an accidental explosion. His later years were no walk in the park: in 2004 he lost his son Eric to an accidental drug overdose; suffered a debilitating stroke that impaired his speech; and was seriously injured in a helicopter crash.


Most of Douglas’ estate will now go to the Douglas Foundation, a non-profit that he and Anne established in 1964. It is one of the entertainment industry’s oldest and largest non-profits. Its website states of its founders: They wanted to give back – not only in thanks for their many blessings, but as a means of teaching their children and grandchildren the lessons they had learned. The Douglas Foundation’s principal goal is to help those who cannot otherwise help themselves. Anne still serves as the organization's managing trustee.


Among the foundation's beneficiaries are The Children’s Hospital of Los Angeles; a scholarship for underprivileged students at St. Lawrence University, Douglas’ alma mater; $15 million toward the Kirk Douglas Care Pavilion, part of an Alzheimer’s facility serving those in the entertainment industry; The Kirk Douglas Theater in Culver City, nurturing young talent; the Kirk and Anne Douglas Childhood Center; the Kirk Douglas High School that helps at-risk youth finish their education; and the Anne Douglas Center for Homeless Women, serving women dealing with addiction. In his later years he and Anne spearheaded a campaign to build 400 playgrounds in Los Angeles. Read more about the projects the foundation supports.


Although Douglas never won an Oscar for his many films, he did receive the Presidential Medal of Freedom Award, a Kennedy Center Honors Award, the Jefferson Award for Public Service, and the French Legion of Honor.

Douglas' widow recalls that in 2015, reflecting on his money, he said: I want to give it all away. And he has. A "leading man," in life and death.

Feb 22, 2020

What Every Personal Representative Must Know

Naming a personal representative (executor) to administer your estate is a serious decision. So is deciding if you want to serve as one. A personal representative is a fiduciary, required to always act in the best interest of beneficiaries. Moreover, he/she may be personally liable for any damages to beneficiaries. A recent case out of New York State illustrates the point. 

Marjorie Kenney died June 21, 2007 in New York State. Her will left all her assets to a not-for-profit organization established in her daughter’s memory. Kenney’s will named Michael Brockbank as executor. As her longtime attorney, trustee of the foundation, and agent under Kenney's power of attorney, Brockbank was familiar with Kenney's  situation and finances. 

Brockbank did not administer her estate expeditiously, however. In fact, he did not even submit an accounting until years later, when the New York Attorney General’s Charities Bureau took him to court in 2014 to get the estate closed. At that time it also came to light that the vast majority of the decedent's estate was tied up in General Electric stock, valued at about $4.6 million.

For years after her death, Brockbank let the GE stock sit, untouched - despite the prudent investor rule requiring, among other things, that a fiduciary diversify investments. He cited several reasons for his inaction: First, the stock paid a 3.3% dividend. Second, he believed Kenney had a sentimental attachment to the stock. It had been in her family for years, and she had refused to sell it when Brockbank once suggested it.

Notwithstanding that reasoning, the court found Brockbank's failure to diversify violated his fiduciary duty. To calculate damages, the court compared the performance of GE stock with the S+P index from the date of death to 2017, when Brockbank finally sold the stock. GE's annualized return was -.53%. The S+P's was +5.9%. Failure to diversify the decedent's portfolio had cost the estate $3.5 million. Brockbank was ordered to pay it back.

He was also cited for several other violations of his executor duties. Among them was his handling of Kenney's home. The 1500-square-foot house was in serious disrepair when she died. Brockbank estimated the property to be worth between $50,000 and $60,000, but made that determination without obtaining any professional appraisals. Concluding the property was worth fixing up, he hired his longtime personal contractor to do the work, but did not solicit any other bids. Nor did he obtain from his contractor a written statement of work to be done and itemized costs. The contractor merely estimated renovations would cost between $100,000 and $200,000. When all was said and done, renovations came to $233,614.93. When Brockbank finally sold the refurbished property, the estate netted $233,972.09 - effectively nothing.

Whether selecting someone to serve as your personal representative, or deciding if you want to serve as one, you must be aware of the fiduciary standard. Although business acumen is certainly a plus, a personal representative's integrity and common sense are paramount. Professionals can always be retained to provide expertise a personal representative may lack, be it in investing, tax matters, real estate, etc. An experienced probate attorney is the place to begin: He/she can perform many of the personal representative's tasks, and/or guide the personal representative to appropriate resources. This will enable the estate to be administered as efficiently and quickly as possible.

Feb 13, 2020

Guardianship in Florida: A Bad Apple

On February 11, Rebecca Fierle was arrested in Marion County, Florida on felony charges of aggravated abuse of an elderly person. As disturbing as elder abuse is, this case is particularly horrifying. That is because Fierle was a professional guardian, entrusted with the welfare of elderly and incapacitated people in 13 Florida counties. 

Steven Stryker was the victim in this case, but just one of many Fierle is accused of victimizing. A Vietnam vet who moved to Florida to care for his aging parents two decades ago, Stryker struggled with alcoholism and PTSD. In recent years he experienced esophageal dysfunction and swallowing difficulties. In 2018 he was admitted to AdventHealth Orlando for treatment. While in the hospital, Advent asked the court to appoint Fierle as his guardian. The petition was granted, although Stryker’s daughter, Kim, a resident of Virginia, was never contacted.

Stryker was later transferred to St. Joseph’s Hospital in Tampa, where a temporary feeding tube was inserted. Acting in her capacity as guardian, Fierle signed a Do Not Resuscitate order for him, also requesting that his feeding tube be capped. She never discussed the DNR with Stryker, who subsequent investigations indicate had the capacity to understand what was going on. Nor did she consult with his daughter. 

Additional investigations have revealed that doctors and others attempted to have Fierle revoke the DNR. They believed Stryker was competent to make decisions, wanted to be fed via feeding tube, and desired resuscitation. Linda Lanier, Stryker's friend of several years, said, “Steve was very capable of making his own decisions.” And Dr. Kirtikumar Pandya, a psychiatrist who examined Stryker at the time, concurs that Stryker wanted to live. Pandya also questioned whether Fierle had adequate health care experience.

Four days after the feeding tube was capped, Stryker began to choke. With hands tied by the DNR, hospital staff could not perform lifesaving measures. Stryker died on May 13, 2019, at age 75.

It has now come to light that Fierle signed DNR's for many of her wards. She also violated Florida law by not seeking court permission for payments from outside sources. According to an audit by the Orange County Comptroller, Fierle received nearly $4 million from AdventHealth, without court approval. 

In July 2019, Judge Janet Thorpe removed Fierle as guardian of 98 individuals in Orange and Osceola counties. Judges across Central Florida followed suit and either accepted her resignation or removed her from guardianship duties. The case has also been an impetus for Florida lawmakers, who have been struggling for years to reform the guardianship system. A new bill now under consideration would, among other measures, require court authorization before a guardian can sign a DNR order. It would also require guardians to submit to the state more detailed financial and payment information.

At the moment, Fierle is out on bond. A trial date will be set. But it all comes too late for Steven Stryker. Says his daughter: "The guardian who caused my dad’s death has been arrested. It’s encouraging that the state has brought charges. But the problem of guardian abuse does not go away with her. The laws vary state to state and God forbid you, or someone you love, falls into the control of a bad one like her." 

There is no question that the vast majority of court-appointed guardians are hardworking and well-intentioned. But who wants to risk of ending up with a bad apple? Even if an honest court-appointed guardian is put in charge, do you really want to put your fate and fortune in the hands of a someone the court selects for you? Do you want the court inserting itself into your affairs? 

If your answer to these questions is no, then you need plans to prevent it. A valid and up-to-date durable power of attorney and health care surrogate will authorize someone to handle your affairs if the need ever arises. See a qualified elder law/estate planning attorney to establish these vital documents. 

Jan 18, 2020

Stories Of Assets Lost and Found

Reports frequently come in from around the country about misplaced, forgotten or hidden valuables found in deceased person's homes, or in items that have been donated to second-hand stores. Sometimes the valuables are discovered by rightful heirs, sometimes not. It's a sure bet that plenty of people who are not entitled to what they find are quietly pocketing their discoveries. Those stories don't make it into the news.

Your takeaway: Please organize and de-clutter your home. If you are prone to hiding cash or other valuables somewhere, be sure to tell your trustee, personal representative under your will, and your agent under your durable power of attorney where to look when the time comes. And if you are responsible for cleaning out a loved one’s house, overlook nothing. You probably won’t want to take a sledgehammer to the walls as some did in the stories below…but at the very least, thoroughly check sofa cushions, the tops of closet shelves and the medicine cabinet.

Some relevant recent stories:

Put Your Feet Up On This Footstool. The Associated Press reports that when Philip Fauth of Michigan passed away in July 2019, his granddaughter Kimberly went through his belongings. He had always been frugal, even paying $9,000 cash for a new roof. After Kimberly donated his furniture to Habitat for Humanity, shopper Howard Kirby purchased some of it for $70. Among the items: a footstool. Once Kirby got it home, he and his daughter-in-law agreed that it just didn’t feel right. Unzipping the cushion, they found $43,170 in cash. An honest guy, Kirby saw to it that the money was returned to Kimberly. 

The Bond In The Book. News 9 out of Oklahoma City tells us how a decedent’s saving bond made its way back to its rightful owner. Picking up Norman Rockwell’s America while browsing in a used bookstore, Kevin King found a fully matured savings bond tucked inside. He did some research and discovered that the original owner, Oma Mclain, had passed away in 2002. The co-owner was one James Tober, to whom King delivered the bond. Its value? $19,932. Where the book and the bond were for the eighteen years prior is anyone's guess. 

Under The Floorboards In Minnesota. A 2019 story from KMSP News in Hennepin, Minnesota relates that Andy Rasmussen found a bag of cash under the floorboards of a home. The bag was perched atop a duct and contained about $30,000 in cash. A specialist in renovating homes to make them  accessible to the disabled, Rasmussen turned the money over to the charity that had hired him. It’s going to a good cause, but obviously not to the original owner or the owner's heirs. Who they are remains unknown.

Jan 10, 2020

Family Fighting Over Former Attorney General's Childhood Home

You probably think that the estate plan of one of the nation's most prominent legal authorities would be absolutely airtight. 

But you would be wrong. 

Janet Reno was appointed U.S. Attorney General by President Clinton, the first woman to serve in that role. Raised in Miami, Reno subsequently ran an ultimately unsuccessful campaign for the Florida governorship. She died as a result of Parkinson's Disease in 2016, age 78. She had no husband or children. Her revocable trust listed her seven nieces and nephews as beneficiaries, and named one of them, James Hurchalla, as her successor trustee. 

Reno's estate plan gave special consideration to her longtime Dade County home. A unique piece of property amidst suburban sprawl, the rustic ranch home was built by hand by Reno's mother in the 1940s. It sits on four acres of undeveloped land, can be reached only via a dirt road, and is hidden from view by thick vegetation. Reno's estate plan bequeathed  the property to the University of Miami, on the condition that it preserve the property and keep it undeveloped. 

Just one problem, and a big one: The University of Miami did not want it. The school determined it was too expensive to maintain.

Because Reno failed to include alternative arrangements for the property, her successor trustee sought out another educational institution for the bequest. Miami-Dade College, located just a quarter mile from the ranch, agreed to take the property and preserve it as Reno had specified. The Miami-Dade Circuit Court approved the substitution, stating: "...If a particular charitable purpose becomes unlawful, impracticable, impossible to achieve, or wasteful, the court may...modify or terminate the trust. … in a manner consistent with the settlor’s charitable purposes.”

But now another problem: One of Reno's beneficiaries, her niece Janet M. Reno, wasn't on board with the decision to give the property to Miami-Dade College. She argued that since the property will not pass precisely as Reno originally intended, it must be sold and the proceeds distributed to the nieces and nephews. She took her case to the Miami-based Third Court of Appeals, but it ruled against her in August 2019, finding that substituting a different school was in conformity with her aunt's intent: "The University of Miami’s declination to accept the charitable transfer made the original disposition impossible to achieve. But the successor trustee identified an even closer charitable, educational institution to accept the gift and to comply fully with Ms. Reno’s conditions ‘in perpetuity,’ respecting the ‘unique character’ and ‘historical importance’ of the Reno homestead."

That is not the end of it, however. Late last year Reno took her case to the Florida Supreme Court. She claims that once her aunt died, the trust became irrevocable, and the terms cannot be changed. In other words, Miami-Dade College may not substitute for the University of Miami. Her attorneys write of the lower court's decision: "The opinion if allowed to stand would allow Florida courts and fiduciaries to alter the testamentary intent of Floridians after they pass away thereby eroding their constitutional right to freely devise their assets. The issue is of great public importance to the people of our state, with its high population of elderly citizens, as well as the trust and estate bar."

So what happens now? The Reno family waits for a decision. And the rest of us get a lesson in why one's estate plan must be precisely worded and cover all possible scenarios, whether you're a regular citizen or a U.S. Attorney General.
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