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	<title><![CDATA[Miami Probate Attorney Blog]]></title>
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	<id>tag:www.miamiprobateblog.com,2013-03-21://3121</id>
	<updated>2013-05-25T14:28:13Z</updated>
	<subtitle><![CDATA[This blog seeks to inform readers about current legal issues. We welcome your comments.]]></subtitle>
	<generator uri="http://www.sixapart.com/movabletype/">Movable Type Enterprise</generator>

<entry>
	<title><![CDATA[Power of Attorney bill passes Florida Legislature, p. 3]]></title>
	<link rel="alternate" type="text/html" href="http://www.miamiprobateblog.com/2013/05/power-of-attorney-bill-passes-florida-legislature-p-3.shtml" />
	<id>tag:www.miamiprobateblog.com,2013://3121.652651</id>
	<published>2013-05-25T14:28:00Z</published>
	<updated>2013-05-25T14:28:13Z</updated>
	<summary><![CDATA[Gov. Rick Scott has yet to sign HB 841, the bill that will update the Florida Power of Attorney Act. Making law is sometimes a slow process. When the governor does sign the bill into law, though, the revisions will...]]></summary>
	<author>
		<name><![CDATA[On behalf of Bryant Law Firm]]></name>
		
	</author>
	
		<category term="Estate Administration" scheme="http://www.sixapart.com/ns/types#category" />
	
	<category term="powerofattorney" label="power of attorney" scheme="http://www.sixapart.com/ns/types#tag" />
	<content type="html" xml:lang="en-us" xml:base="http://www.miamiprobateblog.com/">
		<![CDATA[<p>Gov. Rick Scott has yet to sign HB 841, the bill that will update the Florida Power of Attorney Act. Making law is sometimes a slow process. When the governor does sign the bill into law, though, the revisions will go into effect immediately. Before the ink dries, scam artists and disgruntled or misguided relatives will have a harder time taking advantage of vulnerable Florida residents.</p> <p>In our last two posts we discussed powers of attorney in general and a few particulars of HB 841. This is meant as an overview, not a detailed analysis. We offer the information with our usual caveat: If you have questions about the bill or are considering drafting a power of attorney or durable power of attorney, you should consult with an estate planning professional.</p>]]>
		<![CDATA[<p>Sadly, reading the bill leaves one with the impression that not every agent has handled the responsibilities of the power of attorney with integrity and professionalism. The bill tightens the reins a bit on the agent, offering greater protection to the grantor or principal. Remember, the agent has access to the principal's bank accounts, and there is a little larceny in all of us.</p> <p>The bill adds protections for Florida's snow birds and others whose powers of attorney were executed elsewhere. Not every state has adopted the Uniform Power of Attorney Act, so the document could conform with the laws of the principal's home state but look entirely foreign to, say, a Florida banker.</p> <p>As the law stands now, the banker who questions the <a href="http://www.rabpa.com/?3e3ea140" target="_blank" >power of attorney</a> can request an opinion of counsel that the document meets the legal requirements of the state where it was executed. The bill takes it a step further, saying that the banker can refuse to accept the power of attorney if he asks for the opinion and none is provided. Again, the provision offers a little more protection to the principal -- and, of course, to the bank.<span 10px;"><br /></span></p> <p>We should be able to finish this up in our next post, so we can get back to stories of Nazi looting and celebrity estate plans gone wild.</p><p> <b>Source:&nbsp;</b>Florida House of Representatives, <a href="http://www.flsenate.gov/Session/Bill/2013/841" target="_blank" >House Bill 841 (2013) Final Analysis</a>, Civil Justice Subcommittee, accessed online May 23, 2013</p>]]>
	</content>
</entry>

<entry>
	<title><![CDATA[Power of Attorney bill passes Florida Legislature, p. 2]]></title>
	<link rel="alternate" type="text/html" href="http://www.miamiprobateblog.com/2013/05/power-of-attorney-bill-passes-florida-legislature-p-2.shtml" />
	<id>tag:www.miamiprobateblog.com,2013://3121.645266</id>
	<published>2013-05-20T07:16:00Z</published>
	<updated>2013-05-19T02:41:48Z</updated>
	<summary><![CDATA[The Legislature has passed a law amending several parts of the Florida Power of Attorney Act, and while it isn't quite law yet -- Gov. Rick Scott has yet to sign it -- we thought we would explain what the...]]></summary>
	<author>
		<name><![CDATA[On behalf of Bryant Law Firm]]></name>
		
	</author>
	
		<category term="Estate Administration" scheme="http://www.sixapart.com/ns/types#category" />
	
	<category term="powerofattorney" label="power of attorney" scheme="http://www.sixapart.com/ns/types#tag" />
	<content type="html" xml:lang="en-us" xml:base="http://www.miamiprobateblog.com/">
		<![CDATA[<p>The Legislature has passed a law amending several parts of the Florida Power of Attorney Act, and while it isn't quite law yet -- Gov. Rick Scott has yet to sign it -- we thought we would explain what the bill is about. There can be no knowledge without context, though, so we started in our last post with a general discussion of powers of attorney.</p> <p>As we said, a <a href="http://www.rabpa.com/" target="_blank" >power of attorney</a> gives the agent a great deal of authority over the grantor's affairs. The law provides certain safeguards -- such as, the document must be witnessed by two uninvolved individuals and notarized to be valid -- but with changing technology and advances in criminal thinking, legislators occasionally revisit the law to bring it up to date.</p>]]>
		<![CDATA[<p>This bill covers a lot of ground, including some technical changes to clarify the roles of an agent appointed by power of attorney and an agent given the authority to make certain financial transactions on behalf of the grantor. For the most part, though, the bill beefs up protections for the grantor.</p> <p>For example, the new law would require the agent to present an original, executed power of attorney if the agent is transferring real property on the grantor's behalf. The power of attorney must be recorded with other transfer documents. These steps should create a more reliable paper trail in a transaction involving what could be the grantor's most valuable asset.</p> <p>We will go through more of the bill in our next post. We will also continue to monitor the governor's actions with regard to signing this and other laws of interest to the estate planning and probate nerds among us.</p><p> <b>Source:&nbsp;</b>Florida House of Representatives, <a href="http://www.flsenate.gov/Committees/BillSummaries/2013/html/358" target="_blank" >House Bill 841 (2013) Summary</a>, Judiciary Committee, accessed online May 17, 2013</p>]]>
	</content>
</entry>

<entry>
	<title><![CDATA[Power of Attorney bill passes Florida Legislature]]></title>
	<link rel="alternate" type="text/html" href="http://www.miamiprobateblog.com/2013/05/power-of-attorney-bill-passes-florida-legislature.shtml" />
	<id>tag:www.miamiprobateblog.com,2013://3121.645084</id>
	<published>2013-05-18T07:16:00Z</published>
	<updated>2013-05-18T07:16:11Z</updated>
	<summary><![CDATA[We are taking a brief break from the probate woes of the rich and famous to talk about a bill sent to Florida Gov. Rick Scott at the end of April. House Bill 841 makes some significant changes to the...]]></summary>
	<author>
		<name><![CDATA[On behalf of Bryant Law Firm]]></name>
		
	</author>
	
		<category term="Estate Administration" scheme="http://www.sixapart.com/ns/types#category" />
	
	<category term="powerofattorney" label="power of attorney" scheme="http://www.sixapart.com/ns/types#tag" />
	<content type="html" xml:lang="en-us" xml:base="http://www.miamiprobateblog.com/">
		<![CDATA[<p>We are taking a brief break from the probate woes of the rich and famous to talk about a bill sent to Florida Gov. Rick Scott at the end of April. House Bill 841 makes some significant changes to the state's power of attorney law, changes that will go into effect as soon as the governor signs the bill.</p> <p>First, a quick review: A <a href="http://www.rabpa.com/" target="_blank" >power of attorney</a> is a legal document that gives one person the authority to act as an agent for another, the grantor. There are a number of different kinds of powers of attorney, but the basic idea is that the agent will take over the financial decision-making for the grantor. Generally, the grantor can revoke the power of attorney at any time. If the grantor dies or becomes incapitated, the power of attorney terminates automatically.</p>]]>
		<![CDATA[<p>In estate planning, we usually talk about the durable power of attorney. This is the instrument that gives the agent authority to act on the grantor's behalf while the grantor is incapacitated -- during surgery, say, or after a diagnosis of dementia or Alzheimer's disease. A durable power of attorney is often executed in conjunction with a health care directive that allows the agent to make health care decisions for the grantor.</p> <p>The power of attorney is one of the simplest documents in an estate planner's arsenal. It is also one of the most, for want of a better word, powerful. An agent appointed by a general power of attorney has broad authority over the financial affairs of the grantor. As such, the power of attorney is also one of the most abused and, potentially, contested documents in the probate world.</p> <p>We'll continue this in our next post.</p><p> <b>Source:&nbsp;</b>Florida House of Representatives, <a href="http://www.flsenate.gov/Committees/BillSummaries/2013/html/358" target="_blank" >House Bill 841 (2013) Summary</a>, Judiciary Committee, accessed online May 17, 2013</p>]]>
	</content>
</entry>

<entry>
	<title><![CDATA[Diary at center of inheritance dispute in Kardashian case, p. 3]]></title>
	<link rel="alternate" type="text/html" href="http://www.miamiprobateblog.com/2013/05/diary-at-center-of-inheritance-dispute-in-kardashian-case-p-3.shtml" />
	<id>tag:www.miamiprobateblog.com,2013://3121.624043</id>
	<published>2013-05-08T15:45:00Z</published>
	<updated>2013-05-06T20:46:35Z</updated>
	<summary><![CDATA[When we come across an interesting probate case, we sometimes struggle with how much research to do. Writing about the Novack murders prompted a quick trip to the archives to read up on Miami's Fountainebleau Hotel. Perhaps that was a...]]></summary>
	<author>
		<name><![CDATA[On behalf of Bryant Law Firm]]></name>
		
	</author>
	
		<category term="Will and Trust Disputes" scheme="http://www.sixapart.com/ns/types#category" />
	
	<category term="will" label="Will" scheme="http://www.sixapart.com/ns/types#tag" /><category term="personalproperty" label="personal property" scheme="http://www.sixapart.com/ns/types#tag" />
	<content type="html" xml:lang="en-us" xml:base="http://www.miamiprobateblog.com/">
		<![CDATA[<p>When we come across an interesting probate case, we sometimes struggle with how much research to do. Writing about the Novack murders prompted a quick trip to the archives to read up on Miami's Fountainebleau Hotel. Perhaps that was a pride of place moment, though, and not a research-nerd moment. At any rate, in our discussion of the Kardashian daughters' lawsuit against their father's widow, we have not gone in search of the published diary excerpts or gone to Westlaw to find out more about Robert Kardashian's career.&nbsp;</p>
<p>For us, the background is not the most interesting part of this <a href="http://www.rabpa.com/" target="_blank" >will dispute</a>&nbsp;-- the Kardashians' response to the diary entries' publication is. When the family learned of the diary and photographs, the daughters copyrighted the diary, and their mother copyrighted a family picture of her girls with their dad.&nbsp;</p>]]>
		<![CDATA[<p>It seems an unusual step, especially since some of the diary's contents have already been published. The material's copyright opens up another legal claim for the family -- copyright infringement -- and adds pressure to Kardashian's widow to hand the diary and pictures over.</p>
<p>The copyrights could turn against the Kardashians, though, if the court determines that the diary and photos were not, in fact, tangible personal property, that mother and daughters have no legal right to them under the terms of the will. There is no saying, though, how the widow will respond -- or if she'll have the wherewithal to respond.</p>
<p>Apparently, although Robert Kardashian left his bride a house and its furnishings, she has not flourished since he died. Her situation deteriorated enough that by 2010 she was forced to file for Chapter 7 bankruptcy. The bankruptcy complaint cites "years of unchecked spending and living off of her inheritance" as the reasons for the request that her debts be forgiven.</p>
<p>The Kardashians have used her bankruptcy petition against her in this action, too. The argument is that she did not disclose possession of the diary and photographs as assets. That failure amounted to a forfeit of any claim of ownership, they say.</p>
<p>This could take months to play out -- cf Kim Kardashian's divorce -- or it could be settled behind closed doors in a matter of weeks. We predict, perhaps foolishly, that the parties will know the outcome before the tabloids do.</p><p> <b>Source:&nbsp;</b>Courthouse News Service, "<a href="http://www.courthousenews.com/2013/04/05/56428.htm" target="_blank" >Kardashians Sue Father's Widow Over 'Secret' Diary</a>," Annie Youderian,&nbsp;April 5, 2013</p>]]>
	</content>
</entry>

<entry>
	<title><![CDATA[Diary at center of inheritance dispute in Kardashian case, p. 2]]></title>
	<link rel="alternate" type="text/html" href="http://www.miamiprobateblog.com/2013/05/diary-at-center-of-inheritance-dispute-in-kardashian-case-p-2.shtml" />
	<id>tag:www.miamiprobateblog.com,2013://3121.624030</id>
	<published>2013-05-06T20:14:00Z</published>
	<updated>2013-05-06T20:14:04Z</updated>
	<summary><![CDATA[Robert Kardashian, the father of "the" Kardashian girls, died with a will. The document probably seemed clear enough at the time, but there's a problem now, almost a decade after his death. The problem is with the meaning of the...]]></summary>
	<author>
		<name><![CDATA[On behalf of Bryant Law Firm]]></name>
		
	</author>
	
		<category term="Will and Trust Disputes" scheme="http://www.sixapart.com/ns/types#category" />
	
	<category term="will" label="Will" scheme="http://www.sixapart.com/ns/types#tag" /><category term="death" label="death" scheme="http://www.sixapart.com/ns/types#tag" /><category term="personalproperty" label="personal property" scheme="http://www.sixapart.com/ns/types#tag" />
	<content type="html" xml:lang="en-us" xml:base="http://www.miamiprobateblog.com/">
		<![CDATA[<p>Robert Kardashian, the father of "the" Kardashian girls, died with a will. The document probably seemed clear enough at the time, but there's a problem now, almost a decade after his death. The problem is with the meaning of the term "tangible personal property." For the Kardashian daughters and their mother, the problem really is with Robert's widow.</p>
<p>The Kardashians are in a legal fight with their father's widow over the ownership and, importantly, publication rights to Robert's hand-written diary and some family photographs. In the <a href="http://www.rabpa.com/" target="_blank" >will dispute</a>, they say they had no idea those items existed until they read about them in entertainment industry magazines. The widow allegedly held onto the items with the express intent to cash in on them at some point in the future, and, as the saying goes, the future is now.</p>]]>
		<![CDATA[<p>For most of us, it is impossible to put a dollar value on items like family pictures or an old diary. Try getting insurance on something that has only sentimental value -- generally, there has to be some market for these things, some way to determine what it would cost to replace them or just a way to figure out how to quantify the benefit of ownership.&nbsp;</p>
<p>The Kardashians have gained such fame in the last few years through their reality television shows that these family items have market value, hundreds of thousands of dollars' worth of market value. Kardashian's widow has not only sold excerpts to tabloids but also intends to publish a "bookazine" of the diary. That, the lawyer's daughters say, is just not right.</p>
<p>There's another interesting twist ... that we'll get into in our next post.</p><p> <b>Source:&nbsp;</b>Courthouse News Service, "<a href="http://www.courthousenews.com/2013/04/05/56428.htm" target="_blank" >Kardashians Sue Father's Widow Over 'Secret' Diary</a>," Annie Youderian,&nbsp;April 5, 2013</p>]]>
	</content>
</entry>

<entry>
	<title><![CDATA[Diary at center of inheritance dispute in Kardashian case]]></title>
	<link rel="alternate" type="text/html" href="http://www.miamiprobateblog.com/2013/05/diary-at-center-of-inheritance-dispute-in-kardashian-case.shtml" />
	<id>tag:www.miamiprobateblog.com,2013://3121.602163</id>
	<published>2013-05-04T03:46:01Z</published>
	<updated>2013-05-06T19:20:06Z</updated>
	<summary><![CDATA[It may seem odd, but there is such a thing as "blog envy." We have smugly discussed our in-depth, multi-part posts about James Brown's estate, the Astors and other celebrities, but we admit to the tiniest bout of jealousy every...]]></summary>
	<author>
		<name><![CDATA[On behalf of Bryant Law Firm]]></name>
		
	</author>
	
		<category term="Will and Trust Disputes" scheme="http://www.sixapart.com/ns/types#category" />
	
	<category term="will" label="Will" scheme="http://www.sixapart.com/ns/types#tag" /><category term="death" label="death" scheme="http://www.sixapart.com/ns/types#tag" /><category term="personalproperty" label="personal property" scheme="http://www.sixapart.com/ns/types#tag" />
	<content type="html" xml:lang="en-us" xml:base="http://www.miamiprobateblog.com/">
		<![CDATA[<p>It may seem odd, but there is such a thing as "blog envy." We have smugly discussed our in-depth, multi-part posts about James Brown's estate, the Astors and other celebrities, but we admit to the tiniest bout of jealousy every time our family law blog colleagues nabbed another Kardashian headline. Well, our day has finally come.</p>
<p>The legal claim is for copyright infringement, but the issue is really what constituted "tangible personal property" under the late Robert Kardashian's will. The famous attorney -- or infamous, as he became a household word for his part in defending O.J. Simpson -- died in 2003. In addition to his ex-wife and their daughters, he left behind a fortune and a widow. And he had <a href="http://www.rabpa.com/" target="_blank">a will</a>.</p>]]>
		<![CDATA[<p>His daughters claim that the will made it clear that Robert's "tangible personal property" would pass to them upon his death. They and their mother and stepfather agree that Robert left his widow a house and its furnishings. Everything else that could be categorized as a "personal belonging" was to go to his children.</p>
<p>Those belongings included family pictures and a diary. Neither mother nor daughters knew these items existed until, they say in their complaint, headlines appeared in two tabloid magazines about "secret diary" entries that revealed a troubled family life.</p>
<p>The Kardashians accuse their father's widow (the couple were married a few months before his death) of intentionally concealing knowledge of the diary and family pictures. It was her plan, they say, to capitalize on the family's notoriety by selling the items to the highest bidder.</p>
<p>The Kardashian daughters make even more serious allegations against their stepmother. We'll get into that part of the story in our next post.</p>
<p><strong>Source:&nbsp;</strong>Courthouse News Service, "<a href="http://www.courthousenews.com/2013/04/05/56428.htm" target="_blank">Kardashians Sue Father's Widow Over 'Secret' Diary</a>," Annie Youderian,&nbsp;April 5, 2013</p>]]>
	</content>
</entry>

<entry>
	<title><![CDATA[Executor's death means author's private papers can go public 4]]></title>
	<link rel="alternate" type="text/html" href="http://www.miamiprobateblog.com/2013/04/executors-death-means-authors-private-papers-can-go-public-4.shtml" />
	<id>tag:www.miamiprobateblog.com,2013://3121.562964</id>
	<published>2013-04-26T18:55:18Z</published>
	<updated>2013-04-25T19:10:23Z</updated>
	<summary><![CDATA[We are wrapping up our discussion of Willa Cather's wish that her personal letters not be published and that her works not be excerpted or adapted for the screen. The editors of a soon-to-be-released volume of her letters recently admitted...]]></summary>
	<author>
		<name><![CDATA[On behalf of Bryant Law Firm]]></name>
		
	</author>
	
		<category term="Estate Administration" scheme="http://www.sixapart.com/ns/types#category" />
	
	<category term="copyright" label="copyright" scheme="http://www.sixapart.com/ns/types#tag" /><category term="executor" label="executor" scheme="http://www.sixapart.com/ns/types#tag" /><category term="trusts" label="trusts" scheme="http://www.sixapart.com/ns/types#tag" />
	<content type="html" xml:lang="en-us" xml:base="http://www.miamiprobateblog.com/">
		<![CDATA[<p>We are wrapping up our discussion of Willa Cather's wish that her personal letters not be published and that her works not be excerpted or adapted for the screen. The editors of a soon-to-be-released volume of her letters recently admitted that their book was a flagrant violation of the author's wishes -- wishes her first and second executors had followed diligently. But when the second executor passed away in 2011, the copyrights passed to the Willa Cather Trust, which did not, it seems, share the executors' dedication to carrying out the author's instructions.</p>
<p>The trust relaxed the author's rules about what happens with her works. No one has offered much of an explanation of the reasoning behind the decision beyond the predictable "the world must know how brilliant she was."</p>]]>
		<![CDATA[<p>If the trust owns the copyrights, it can do whatever it wants, even if it wants to ignore the express wishes of the testator/trustor. The only thing that could stop the trust from opening the archives to anyone and everyone would be a legal challenge, but from whom? The board includes a member of Cather's family, who presumably was in favor of tearing down that wall; that relative could have standing as an interested party, but that relative seems not to have a complaint. A hard-core Cather fan would not have any standing to file a lawsuit against the trust, because the fan is so far removed from the ownership of the copyrights.</p>
<p>The trust's actions may have Cather spinning in her grave, but as long as the holders of the copyrights are OK with the publication and there is no other interested party who has a stake in keeping the letters and papers private, there is nothing to do about it.</p>
<p><strong>Source</strong>: The New York Times, "<a href="http://www.nytimes.com/2013/03/22/books/willa-cather-letters-to-be-published-as-an-anthology.html?_r=3&amp;" target="_blank">O Revelations! Letters, Once Banned, Flesh Out Willa Cather</a>," Jennifer Schuessler, March 21, 2013</p>
<p>Our firm works with clients in the Miami and South Florida area on estate administration issues like the one discussed in this series of posts. To find out more about our practice, please visit our <a href="http://www.rabpa.com/" target="_blank">website</a>.</p>]]>
	</content>
</entry>

<entry>
	<title><![CDATA[Executor's death means author's private papers can go public 3]]></title>
	<link rel="alternate" type="text/html" href="http://www.miamiprobateblog.com/2013/04/executors-death-means-authors-private-papers-can-go-public-3.shtml" />
	<id>tag:www.miamiprobateblog.com,2013://3121.562915</id>
	<published>2013-04-25T18:43:07Z</published>
	<updated>2013-04-25T18:54:54Z</updated>
	<summary><![CDATA[Willa Cather wanted her work to speak for itself. She did not want her id and ego and superego injected into her fiction; she wanted her characters' ids and egos and so on to be the point. She must have...]]></summary>
	<author>
		<name><![CDATA[On behalf of Bryant Law Firm]]></name>
		
	</author>
	
		<category term="Estate Administration" scheme="http://www.sixapart.com/ns/types#category" />
	
	<category term="copyright" label="copyright" scheme="http://www.sixapart.com/ns/types#tag" /><category term="executor" label="executor" scheme="http://www.sixapart.com/ns/types#tag" /><category term="trust" label="trust" scheme="http://www.sixapart.com/ns/types#tag" />
	<content type="html" xml:lang="en-us" xml:base="http://www.miamiprobateblog.com/">
		<![CDATA[<p>Willa Cather wanted her work to speak for itself. She did not want her id and ego and superego injected into her fiction; she wanted her characters' ids and egos and so on to be the point. She must have been a fan of the New Criticism movement in literature and literary analysis. The men and women -- well, mostly men behind New Criticism believed that literature stood apart from history and the daily lives of authors, that the words on the page were such a powerful expression of the human condition that context was unimportant.</p>
<p>Even if she weren't a New Critic, she wanted her private life kept private, and that really annoyed scholars. For years during her life and after her death critics and researchers badgered Cather or her estate about gaining access to her private letters. When she and then her first two executors rebuffed so many advances, those researchers became suspicious. They suggested she must have something to hide to guard her privacy so fiercely. And, you know, she never married, so that deep dark secret must be that she was a lesbian. And, if that were true, she must have been so deeply ashamed of her deep, dark secret that she wanted any evidence of it destroyed.</p>]]>
		<![CDATA[<p>According to the editors of a newly published volume of Cather's letters, the rumors were grossly exaggerated.&nbsp;The letters reveal, according to the editors, a woman who was picky and private but not particularly repressed or ashamed or even overtly sexual in any way. Others, of course, speculate that Cather destroyed the letters that would have given her secret away.</p>
<p>But back to the probate issue -- in our next and last post in this series.</p>
<p><strong>Source</strong>: The New York Times, "<a href="http://www.nytimes.com/2013/03/22/books/willa-cather-letters-to-be-published-as-an-anthology.html?_r=3&amp;" target="_blank">O Revelations! Letters, Once Banned, Flesh Out Willa Cather</a>," Jennifer Schuessler, March 21, 2013</p>
<p>We help our clients with estate administration matters like the one we talk about in this post. If you're interested in learning more about our Miami, Florida, practice, please hop over to our <a href="http://www.rabpa.com/" target="_blank">website</a>.</p>]]>
	</content>
</entry>

<entry>
	<title><![CDATA[Executor's death means author's private papers can go public 2]]></title>
	<link rel="alternate" type="text/html" href="http://www.miamiprobateblog.com/2013/04/executors-death-means-authors-private-papers-can-go-public-2.shtml" />
	<id>tag:www.miamiprobateblog.com,2013://3121.553105</id>
	<published>2013-04-21T05:16:06Z</published>
	<updated>2013-04-21T05:17:42Z</updated>
	<summary><![CDATA[We are talking about author Willa Cather and her express instructions that none of her letters be quoted from or published ever -- not during her lifetime, and not after her death. Cather was not from Florida; she was from...]]></summary>
	<author>
		<name><![CDATA[On behalf of Bryant Law Firm]]></name>
		
	</author>
	
		<category term="Estate Administration" scheme="http://www.sixapart.com/ns/types#category" />
	
	<category term="copyright" label="copyright" scheme="http://www.sixapart.com/ns/types#tag" /><category term="executor" label="executor" scheme="http://www.sixapart.com/ns/types#tag" />
	<content type="html" xml:lang="en-us" xml:base="http://www.miamiprobateblog.com/">
		<![CDATA[<p>We are talking about author Willa Cather and her express instructions that none of her letters be quoted from or published ever -- not during her lifetime, and not after her death. Cather was not from Florida; she was from the Great Plains, the part of the country that she wrote about. One friend of ours suggested that if Cather had been from Florida, she would not have been so secretive with her private life; our friend believes the Southern influence in Florida makes us all want to blurt about our own lives as much as we want to butt into other people's.</p>
<p>In spite of those instructions, a volume of Cather's letters is coming out this month. Two scholars have edited 566 of Cather's 3,000 letters into a volume that reveals aspects of the author's personal life that she likely did not want discussed publicly. The editors say the letters contain nothing scandalous, but they do reveal an author who wanted control over all the details of her writings and how they were presented. The letters apparently include everything from instructions about margin widths to a strict prohibition of including excerpts of her novels in anthologies or turning them into movies.</p>]]>
		<![CDATA[<p>From the information at hand, it looks as if she gave as much control to her executors as she could by granting them control over the copyrights to her works -- including the copyrights to her letters. Her first executor, in fact, refused to allow Cather's works to be published in paperback until the 1960's. Both the first executor and the second, her nephew, stood firm in their defense of Cather's privacy. They had the copyrights, after all.</p>
<p>When Cather's second executor passed away in 2011, the copyrights went to the Willa Cather Trust. The trust is a partnership that includes a member of Cather's family, the University of Nebraska Foundation and the Willa Cather Foundation. It was the trust that decided that it was time for a change of attitude about the letters, excerpting Cather's works and approving film adaptations.</p>
<p>But even the editors admit that publishing the letters "flagrantly" violates the author's wishes. Why do it then? We'll get into that in our next post.</p>
<p><strong>Source</strong>: The New York Times, "<a href="http://www.nytimes.com/2013/03/22/books/willa-cather-letters-to-be-published-as-an-anthology.html?_r=3&amp;" target="_blank">O Revelations! Letters, Once Banned, Flesh Out Willa Cather</a>," Jennifer Schuessler, March 21, 2013</p>
<p>Our practice is devoted to helping families with estate administration matters like the one referred to above. You can learn more about our Miami, Florida, firm at our <a href="http://www.rabpa.com/" target="_blank">website</a>.</p>]]>
	</content>
</entry>

<entry>
	<title><![CDATA[Executor's death means author's private papers can go public]]></title>
	<link rel="alternate" type="text/html" href="http://www.miamiprobateblog.com/2013/04/executors-death-means-authors-private-papers-can-go-public.shtml" />
	<id>tag:www.miamiprobateblog.com,2013://3121.552863</id>
	<published>2013-04-20T21:48:12Z</published>
	<updated>2013-04-20T21:50:11Z</updated>
	<summary><![CDATA[Another story of a very private celebrity's wishes being set aside crossed our path recently. The writer is Willa Cather, the woman whose works centered on the American Frontier, the Great Plains of the American Midwest. These were hard places...]]></summary>
	<author>
		<name><![CDATA[On behalf of Bryant Law Firm]]></name>
		
	</author>
	
		<category term="Estate Administration" scheme="http://www.sixapart.com/ns/types#category" />
	
	<category term="copyright" label="copyright" scheme="http://www.sixapart.com/ns/types#tag" /><category term="estate" label="estate" scheme="http://www.sixapart.com/ns/types#tag" /><category term="executor" label="executor" scheme="http://www.sixapart.com/ns/types#tag" />
	<content type="html" xml:lang="en-us" xml:base="http://www.miamiprobateblog.com/">
		<![CDATA[<p>Another story of a very private celebrity's wishes being set aside crossed our path recently. The writer is Willa Cather, the woman whose works centered on the American Frontier, the Great Plains of the American Midwest. These were hard places in her day, during the first half of the 20th Century -- not that they are any easier now, come to think of it. Snow birds from that part of the country are staying longer in Florida this year to avoid the actual snowfall. In April.</p>
<p>Rumor has had it for a long time that Cather destroyed much of her personal correspondence. She wanted to be remembered for her work; she did not like the public scrutiny of her private life, and literary scholars have long taken exception. How can we truly understand her work, they said, if we know nothing of her inner thoughts and feelings. Cather's will specifically directed her executors to keep private things private, though, and they did so for almost 70 years.</p>]]>
		<![CDATA[<p>Her nephew, Charles Cather, was the executor of her estate at the time of his own death in 2011; he had taken over after the first executor passed way. Both had fiercely protected Cather's privacy and adhered to her wishes that her private papers and letters not be published and that they not be quoted from. Charles was reportedly verging on hostile toward a Cather biographer in the 1980s.</p>
<p>Personal loyalty will only go so far, though. A good estate plan will give executors some legal tools to back up the testator's wishes. In Cather's case, she did what any published author would do: She gave her executors control of the copyrights to all of her works.</p>
<p>To be continued....</p>
<p><strong>Source</strong>: The New York Times, "<a href="http://www.nytimes.com/2013/03/22/books/willa-cather-letters-to-be-published-as-an-anthology.html?_r=3&amp;" target="_blank">O Revelations! Letters, Once Banned, Flesh Out Willa Cather</a>," Jennifer Schuessler, March 21, 2013</p>
<p>Our firm handles estate administration matters similar to the one discussed in this post. If you are interested in more information about our Miami, Florida, practice, please visit our <a href="http://www.rabpa.com/" target="_blank">website</a>.</p>]]>
	</content>
</entry>

<entry>
	<title><![CDATA[Astor's son may soon call prison 'home' for crimes against estate]]></title>
	<link rel="alternate" type="text/html" href="http://www.miamiprobateblog.com/2013/04/astors-son-may-soon-call-prison-home-for-crimes-against-estate.shtml" />
	<id>tag:www.miamiprobateblog.com,2013://3121.521964</id>
	<published>2013-04-12T07:32:46Z</published>
	<updated>2013-04-12T07:38:11Z</updated>
	<summary><![CDATA[We were talking about the recent developments in the Brooke Astor estate case, and a friend asked an interesting question. If we had taken money from our mother's estate, would it be worse to have a stranger turn us in...]]></summary>
	<author>
		<name><![CDATA[On behalf of Bryant Law Firm]]></name>
		
	</author>
	
		<category term="Estate Litigation" scheme="http://www.sixapart.com/ns/types#category" />
	
	<category term="brookeastor" label="Brooke Astor" scheme="http://www.sixapart.com/ns/types#tag" /><category term="estateadministration" label="estate administration" scheme="http://www.sixapart.com/ns/types#tag" /><category term="probatelitigation" label="probate litigation" scheme="http://www.sixapart.com/ns/types#tag" />
	<content type="html" xml:lang="en-us" xml:base="http://www.miamiprobateblog.com/">
		<![CDATA[<p>We were talking about the recent developments in the Brooke Astor estate case, and a friend asked an interesting question. If we had taken money from our mother's estate, would it be worse to have a stranger turn us in or to have our own child finger us for the authorities? The answers among the group were a little disturbing, to be honest. For some, the crux of the matter was whether the kid had benefitted from the theft.</p>
<p>At any rate, the situation that Astor's son, Anthony D. Marshall, and his lawyer now find themselves in offers plenty of fodder for discussion as we gaze out at the Miami sunset. Marshall and his lawyer could soon see their last sunsets as free men, now that the appellate court in their home state has upheld their larceny convictions. The two were sentenced in 2009 to serve the mandatory minimums for their parts in raiding Mrs. Astor's bank accounts.</p>]]>
		<![CDATA[<p>Marshall's son filed a guardianship petition in 2006, claiming that his father was abusing Astor. Several of Astor's friends got involved as well. That petition snowballed into criminal indictments of Marshall and his lawyer. After a five-month trial, the jury convicted Marshall of 14 of the 16 counts against him, the most serious being grand larceny. It is that charge that carries the minimum mandatory sentence of one to three years.</p>
<p>That specific act of larceny occurred when Marshall gave himself a retroactive raise for managing his mother's affairs -- a $1 million raise, that is. But there were charges that Marshall and his lawyer tricked Astor into signing a codicil to her will that gave each of them millions of dollars. Astor's estate was valued at $180 million when she died in 2007.</p>
<p>Marshall argued that the grand larceny conviction be set aside for a couple of reasons. One, he had devoted much of his life to charity work. And two, he is 88-years-old.</p>
<p>The appeals court said no. About the defendant's age, the court explained that being 88 should not render him "categorically immune from incarceration."</p>
<p>If we are to believe, as the jury did, that Marshall mishandled and abused his mother's trust in so many ways, it may in fact be that Tarkington moment we discussed in our last post. Anthony D. Marshall may have finally gotten his comeuppance.</p>
<p><strong>Sources</strong>:</p>
<p>The New York Times, "<a href="http://www.nytimes.com/2013/03/27/nyregion/brooke-astors-son-loses-appeal.html?ref=willsandestates" target="_blank">Son and Lawyer Lose Appeal in Looting of Astor Estate</a>," Russ Buettner, March 26, 2013</p>
<p>We help our clients with estate issues like the ones in this post. If you're interested in more information about our practice, please visit our Miami, Florida, <a href="http://www.rabpa.com/" target="_blank">wills and trust law</a> website.</p>]]>
	</content>
</entry>

<entry>
	<title><![CDATA[Reducing probate-related conflicts in your family]]></title>
	<link rel="alternate" type="text/html" href="http://www.miamiprobateblog.com/2013/04/reducing-probate-related-conflicts-in-your-family.shtml" />
	<id>tag:www.miamiprobateblog.com,2013://3121.517739</id>
	<published>2013-04-10T18:16:24Z</published>
	<updated>2013-04-10T18:22:05Z</updated>
	<summary><![CDATA[It is never easy to mention the "m" word. Money is very difficult to discuss - especially with family members. Nevertheless, if you are working on post-life estate planning distributions, you should consider discussing your anticipated plan with your family....]]></summary>
	<author>
		<name><![CDATA[On behalf of Bryant Law Firm]]></name>
		
	</author>
	
		<category term="Estate Administration" scheme="http://www.sixapart.com/ns/types#category" />
	
	<category term="estateplanning" label="estate planning" scheme="http://www.sixapart.com/ns/types#tag" /><category term="willandtrustdisputes" label="will and trust disputes" scheme="http://www.sixapart.com/ns/types#tag" />
	<content type="html" xml:lang="en-us" xml:base="http://www.miamiprobateblog.com/">
		<![CDATA[<p>It is never easy to mention the "m" word. Money is very difficult to discuss - especially with family members. Nevertheless, if you are working on post-life <a href="http://www.rabpa.com/">estate planning</a> distributions, you should consider discussing your anticipated plan with your family. This is especially true if you have more than one adult child.</p>
<p>Due to poor investments and general mismanagement, many people fail in their effort to transfer family wealth. This is the case when people do not prepare heirs for the receipt of inheritances.</p>]]>
		<![CDATA[<p><strong>Prevent flawed transfers with a family meeting</strong> <br /><br />The best way to reduce controversy in the probate process is to set up a family meeting, and let your family know what to expect before they receive a transfer in wealth. This will help reduce anxiety associated with the process.</p>
<p>If you have more than one child, the safest bet is to distribute wealth equally; however, this is not always possible. To make your estate planning process easier, sit down with your children and speak to them about what they value. For example, one child may appreciate the collection of family photos or stamps, while another may have their eye on family heirlooms, such as a painting. Gaining a stronger understanding of what is&nbsp;valued by&nbsp;each child - tangible property, money, etc. - will make your job easier.</p>
<p>Also, if one particular child has special needs (for example, a physical or mental disability), it may help to speak with all children about the need to transfer additional funds to that child for his or her treatment. While the arrangement may not be equal among children, informing them of your motivation behind particular choices helps make the distribution equitable. Your children will have a greater comprehension of why you did things the way you did.</p>
<p>Ultimately, a family meeting about your estate plan will give your family members a chance to share stories and talk openly about items that are important to them. It will also encourage cooperating regarding estate matters, reducing the chance of a probate dispute. Once you gather the information that you need, you can meet with a qualified estate-planning attorney about drafting your proposed estate plan. <br /><br /><strong>Source:</strong> Huffington Post, "<a href="http://www.huffingtonpost.com/2013/04/06/estate-planning-child-interitance_n_2992519.html">How To Talk With Your Adult Kids About Their Inheritance</a>," Lori R. Sackler, April 6, 2013</p>]]>
	</content>
</entry>

<entry>
	<title><![CDATA[A Tarkington moment? Astor's son closer to serving prison sentence]]></title>
	<link rel="alternate" type="text/html" href="http://www.miamiprobateblog.com/2013/04/a-tarkington-moment-astors-son-closer-to-serving-prison-sentence.shtml" />
	<id>tag:www.miamiprobateblog.com,2013://3121.505865</id>
	<published>2013-04-06T21:09:39Z</published>
	<updated>2013-04-06T21:11:33Z</updated>
	<summary><![CDATA[A friend of ours loves to use arcane words and expressions that, for the most part, she learned from the movies. One of her favorites is "comeuppance." She remembers it from the movie, "The Magnificent Ambersons," based on the novel...]]></summary>
	<author>
		<name><![CDATA[On behalf of Bryant Law Firm]]></name>
		
	</author>
	
		<category term="Estate Litigation" scheme="http://www.sixapart.com/ns/types#category" />
	
	<category term="alzheimersdisease" label="Alzheimer&apos;s disease" scheme="http://www.sixapart.com/ns/types#tag" /><category term="brookeastor" label="Brooke Astor" scheme="http://www.sixapart.com/ns/types#tag" /><category term="estateadministration" label="estate administration" scheme="http://www.sixapart.com/ns/types#tag" /><category term="probatelitigation" label="probate litigation" scheme="http://www.sixapart.com/ns/types#tag" />
	<content type="html" xml:lang="en-us" xml:base="http://www.miamiprobateblog.com/">
		<![CDATA[<p>A friend of ours loves to use arcane words and expressions that, for the most part, she learned from the movies. One of her favorites is "comeuppance." She remembers it from the movie, "The Magnificent Ambersons," based on the novel by Booth Tarkington. The main character, George Minafer, is an insufferable boy who turns into an insufferable man. He is born into wealth and has all the arrogance that can come from a life of privilege and indulgence.</p>
<p>George is a big, obnoxious fish in a fairly small pond, and many people in town, the film's narrator explains, hope to see the day "when that boy would get his comeuppance." Something or someone will knock him off his pedestal, and lots of people will be only too happy to see it happen. While our friend longs to see the poodle down the street get his comeuppance, others in the probate and estates trade heard some news about social mainstay Brooke Astor's estate recently that brought George Minafer to mind.</p>]]>
		<![CDATA[<p>The Astor name was well established as the pinnacle of society by the time Brooke Astor was born in 1902. The first Astor of note was John Jacob Astor, the first American multi-millionaire. Brooke was not born an Astor; she married into the family in the 1950s. And when her husband, Vincent, died, she turned her energy to all of the charitable organizations he'd left his money to. She died in 2007, having suffered from Alzheimer's disease for a few years at least.</p>
<p>So where does George Minafer fit in? Astor's son and an estate lawyer lost what could be their final appeals recently and could actually find themselves in prison soon. If the jury got it right, as the appeals court said it did, the two may have gotten their comeuppance.</p>
<p>We'll talk about the charges against them in our next post.</p>
<p><strong>Sources</strong>:</p>
<p>The New York Times, "<a href="http://www.nytimes.com/2013/03/27/nyregion/brooke-astors-son-loses-appeal.html?ref=willsandestates" target="_blank">Son and Lawyer Lose Appeal in Looting of Astor Estate</a>," Russ Buettner, March 26, 2013</p>
<p>The New York Times, "Guilty Verdicts Appealed in Brooke Astor Will Case," John Eligon, March 28, 2011</p>
<p>Our firm handles estate matters similar to the one discussed above. Please visit our <a href="http://www.rabpa.com/" target="_blank">website</a> for more information about our Miami, Florida, law practice.</p>]]>
	</content>
</entry>

<entry>
	<title><![CDATA[Another probate mess winding down as judge nixes trusts p2]]></title>
	<link rel="alternate" type="text/html" href="http://www.miamiprobateblog.com/2013/04/another-probate-mess-winding-down-as-judge-nixes-trusts-p2.shtml" />
	<id>tag:www.miamiprobateblog.com,2013://3121.489845</id>
	<published>2013-04-03T23:43:46Z</published>
	<updated>2013-04-04T00:00:54Z</updated>
	<summary><![CDATA[Patience and perseverance really does pay off -- at least, it did in the case of a man whose boss had left her farm to him in not one, but two versions of her will. After years of wrangling with...]]></summary>
	<author>
		<name><![CDATA[On behalf of Bryant Law Firm]]></name>
		
	</author>
	
		<category term="Estate Litigation" scheme="http://www.sixapart.com/ns/types#category" />
	
	<category term="conservator" label="conservator" scheme="http://www.sixapart.com/ns/types#tag" /><category term="probatelitigation" label="probate litigation" scheme="http://www.sixapart.com/ns/types#tag" /><category term="trusts" label="trusts" scheme="http://www.sixapart.com/ns/types#tag" />
	<content type="html" xml:lang="en-us" xml:base="http://www.miamiprobateblog.com/">
		<![CDATA[<p>Patience and perseverance really does pay off -- at least, it did in the case of a man whose boss had left her farm to him in not one, but two versions of her will. After years of wrangling with a court-appointed conservator and the probate court that appointed the conservator, the man and his attorney seem to have convinced a superior court that, well, mistakes were made.</p>
<p>The situation took on bizarre aspects at some points. The judge, for example, admitted to channeling the spirits of Eddie Haskell and Richard Nixon. The conservator never met his ward; by the time he was appointed, she was living in a nursing home and suffering from dementia. "I don't speak dementia," he is quoted as saying. We can derive some comfort from knowing that none of this took place in Florida.</p>]]>
		<![CDATA[<p>While the testator was still alive, control of her estate was wrested from her and her long-time employee, who had also been her conservator. Between the probate court and its appointees, the wishes of the testator were completely set aside, in spite of the existence of a valid will, and, as we said in our last post, the land was put into two trusts.</p>
<p>In its recent decision, the superior court criticized just about everyone involved with the creation of those trusts. The probate judge held a hearing, apparently attended only by the judge himself, to approve the creation of the trusts. Usually, a hearing would have included testimony about why the trusts would benefit the testator. The court record seems not to have any record of any testimony at all. And, even if someone had argued that taking almost all of a woman's money away from her, leaving her nothing to pay her bills with, would be a good thing, it looks as if the superior court would have disagreed.</p>
<p>So the trusts are out. Now the parties go back to the probate court, and a different probate judge, to work out a settlement. All the caretaker said when the decision came down was that he was very happy. He has been living on the farm alone, tending his boss's cows, since the day more than four years ago that he helped her check in to a nursing home</p>
<p><strong>Source</strong>: The Hartford Courant, "<a href="http://articles.courant.com/2013-03-20/news/hc-smoron-farm-southington-ruling-20130320_1_josephine-smoron-smoron-farm-creation-of-two-trusts" target="_blank">Judge Rules In Favor Of Caretaker In Smoron Farm Case</a>," Rick Green, March 20, 2013</p>
<p>We help people with probate matters like the one discussed in this post and our post of March 30. Please go to our <a href="http://www.rabpa.com/" target="_blank">website</a> if you'd like more information about our Miami, Florida, practice.</p>]]>
	</content>
</entry>

<entry>
	<title><![CDATA[Another probate mess winding down as judge nixes trusts]]></title>
	<link rel="alternate" type="text/html" href="http://www.miamiprobateblog.com/2013/03/another-probate-mess-winding-down-as-judge-nixes-trusts.shtml" />
	<id>tag:www.miamiprobateblog.com,2013://3121.478830</id>
	<published>2013-03-30T14:39:10Z</published>
	<updated>2013-03-30T14:46:00Z</updated>
	<summary><![CDATA[This must be the year that courts looking at twisted probate litigation that has lasted for years throw open the window and shout, "We're not going to take it anymore!" It could be a true "Network" moment, if anyone remembers...]]></summary>
	<author>
		<name><![CDATA[On behalf of Bryant Law Firm]]></name>
		
	</author>
	
		<category term="Estate Litigation" scheme="http://www.sixapart.com/ns/types#category" />
	
	<category term="conservator" label="conservator" scheme="http://www.sixapart.com/ns/types#tag" /><category term="probatelitigation" label="probate litigation" scheme="http://www.sixapart.com/ns/types#tag" /><category term="trusts" label="trusts" scheme="http://www.sixapart.com/ns/types#tag" />
	<content type="html" xml:lang="en-us" xml:base="http://www.miamiprobateblog.com/">
		<![CDATA[<p>This must be the year that courts looking at twisted probate litigation that has lasted for years throw open the window and shout, "We're not going to take it anymore!" It could be a true "Network" moment, if anyone remembers the 1976 movie that won Beatrice Straight her Supporting Actress Oscar for a role that had five minutes and 40 seconds of screen time.</p>
<p>We have written about this case before, and it is similar in a few ways to the James Brown estate litigation. It is not a Florida case, though it has garnered national attention (beyond our own) for several reasons.</p>]]>
		<![CDATA[<p>The testator was a woman who owned a particularly valuable tract of land. She farmed the 90 acres with the assistance of her long-time caretaker, and she left the property to him in a will executed in 1996 and another executed in 2004. He was her conservator, as well; when she became ill and dementia set in, he moved her to a nursing home, where he visited her frequently. And in her absence, he minded the farm.</p>
<p>A probate judge, however, inserted himself into the matter and removed the caretaker as conservator. The new conservator and the judge were acquaintances, and, while the testator was still alive, they decided that the best thing for her would be to place the land into two trusts and made arrangements to sell the farm to a local developer. The trust's beneficiaries were three local Catholic churches.</p>
<p>That was a sticking point for the judge that recently vacated the probate court's various orders in the matter. The testator was 92 and suffered from dementia, and she lived in a nursing home, but she was very much alive at the time the trusts were established. Why, then, the court asked, would the probate judge and the conservator put her assets into a trust that would in no way benefit her? Why would they turn the money over to strangers, leaving her with no means of support?</p>
<p>Why, indeed. We'll continue this in our next post.</p>
<p><strong>Source</strong>: The Hartford Courant, "<a href="http://articles.courant.com/2013-03-20/news/hc-smoron-farm-southington-ruling-20130320_1_josephine-smoron-smoron-farm-creation-of-two-trusts" target="_blank">Judge Rules In Favor Of Caretaker In Smoron Farm Case</a>," Rick Green, March 20, 2013</p>
<p>Our firm works with heirs like the caretaker in this post on probate matters. If you're interested in learning more about our practice here in Miami, Florida, please visit our <a href="http://www.rabpa.com/" target="_blank">website</a>.</p>]]>
	</content>
</entry>

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