LOCATING MISSING HEIRS

Whether a family member dies with or without a Last Will & Testament, all interested parties must be located and notified of the decedent’s passing.
Interested parties consist of all the heirs named in the Will or all distributees of the Estate.

A distributee is a family member of the deceased who would inherit if there was no will. Failure to locate an interested party will delay the probate of the Estate.
We can locate missing relatives by conducting extensive internet searches directly or by retaining genologist companies.

As a last resort, we can serve the missing interested parties by publication after the completion of all due diligence and by order of the Court.

However, simply locating an heir is not enough; one would have to first prove his/her status as the legal heir of the decedent. This can be done in two ways:

1)  He/she can produce an Heir ship Affidavit drafted by an individual with knowledge.

2)  By providing a Birth Certificate.

For any assistance in this regard, please contact Jeffrey Weinstein Estates Attorney, on 212-693-3737

Chapter 7 Bankruptcy and Student Loans

CONGRESS PLAN TO MAKE PRIVATE STUDENT LOANS DISCHARGEABLE IN BANKRUPTCY

In 2015, 13 senators of the 144th Congress (2015-17) co-sponsored the “Fairness for Struggling Students Act of 2015.”, which was the latest in a series of legislative attempts to get the Bill passed. Unfortunately, the Bill died in the previous Congress, which concluded on 3-January 2017.

Similar Bills were previously introduced, under the same title, in 2010, 2011 and 2013. To become law, a bill must be passed by both the House and Senate, and then be signed by the President.

The main purpose of this piece of legislation was to restore the ability for debtors filing for Chapter 7 bankruptcy to discharge private student loans.

This Bill tried to reverse a 2005 Law that made all students loans non-dischargeable in Chapter 7 bankruptcy except in cases of extreme hardship. The 2005 law was intended to safe guard federal investments in higher education, but that bill included private bank loans as well as federally insured loans.

In 2010, Student loan debt was over $1 trillion, more than the credit card debt. Even the 56% of graduates who found jobs, cannot handle the heavy burden of repayment of the average debt of $24,000.00 per graduate.

These student loan Bills have always been stalled in committee, and without strong encouragement from constituents, Republicans and Democrats, even future Bills will not pass.  E-mail or call your congressperson today.

For more information email me at j.weinstein@jlwlawoffices.com or call me at 212-693-3737 for Free Consultation

To Give or Not To Give

There are 3 basic options for estate planning. Two require the assistance of an attorney. One only requires a checkbook and a pen

  1. Prepare a Last Will and Testament and leave your property outright to your heirs in a will.
  1. Prepare an Irrevocable Trust: your funds go into the Trust and are distributed over time by your duly appointed Trustee in accordance with the terms of the Trust.
  1. Gift all your money away during your lifetime.

Charles Feeney was a billionaire philanthropist. He chose Option 3. Feeney made his money operating duty-free shops in airports all over the world and had a knack for investing in successful tech start ups like Facebook in which he was an early investor.

By 1982 he was worth over $8 billion and during that year he started giving that money away through a foundation he started called Atlantic Philanthropies, a collection of private foundations located around the world.

You’ve probably never heard of Mr. Feeney because he deliberately remained under the radar.  In January of this year, a profile of him in the New York Times, James Bond of Philanthropy’ Gives Away the Last of His Fortune said this about him:

“His name does not appear in gilded letters, chiseled marble or other forms of writing anywhere on the 1,000 buildings across five continents that $2.7 billion of his money paid for. For years, Atlantic’s support came with a requirement that the beneficiaries not publicize its involvement.

None of the major American philanthropists have given away a greater proportion of their wealth, and starting in 1982, Mr. Feeney did most of this in complete secrecy, leading Forbes magazine to call him the “James Bond of philanthropy.”

Five years ago at the age of 85, his foundation still had $1.7 billion left and the way he had it figured, time was running out. The Times article noted that Feeney achieved his goal by giving the last of the money, $7 million grant to Cornell University, to support students doing community service work.

For those of you who choose to give all your money away, God bless you. For the rest of you who choose to leave your good fortune to your heirs, we can assist you in your estate planning.  Please give us a call at 212-693-3737.

Old Age and Sickness as Evidence of Lack of Testamentary Capacity

Neither physical injury, illness nor old age alone are considered by courts to be incompatible with testamentary capacity. The question in each case is the degree to which the decedent’s understanding and decision-making were affected, which must be determined on the facts of each case.

“Advanced age is ordinarily accompanied by impairment of the physical or mental faculties, but the will of an elderly person is not for that reason to be rejected. The question is always one of degree. If the testator had in mind the natural objects of his bounty, if he comprehended the nature and extent of his property, and if he understood the business being transacted and the document being executed, then he had the mental capacity to make a will.”  Matter of Heaton, 224 N. Y. 22 Court of Appeals of New York, 1918)

In In re Prevratil, 121 A.D.3d 137, 990 N.Y.S.2d 697 (3d Dep’t 2014) court held that the fact that decedent was in declining state from terminal cancer and died five days after executing his will did not create question of fact as to his capacity.

Similarly, the court found testamentary capacity in In re Alibrandi, 104 A.D.3d 1175, 960 N.Y.S.2d 760 (4th Dep’t 2013) despite fact that decedent had been diagnosed with Alzheimer’s disease around time of will execution and his short-term memory had declined.

To successfully raise the issue of testamentary capacity, hospital records can be determinative. In the case of In re Chaladoff, 2012 N.Y. Misc. LEXIS 1092 (Sur. Ct. Nassau County Feb. 28, 2012), the court found a triable issue of fact as to the testator’s testamentary capacity based on his medical records, despite conflicting testimony of the two attesting witnesses and the supervising attorney. The decedent’s medical records indicated that he had been unable to sign a DNR form the day before the will execution in the opinion of the medical staff because he lacked mental capacity. Also, the medical records stated that the decedent was being administered morphine and he was “barely arousable” on the day of will execution.

Testamentary capacity must be determined on a case by case basis, and it is based on the decedent’s mental state at the time of the execution of the will.

For any legal assistance in this regard, please contact Jeffrey Weinstein Estates Attorney, on 212-693-3737

Estate Of Marilyn Monroe- Right Of Publicity

Marilyn Monroe died 55 years ago, but even today, her estate millions per year through  merchandising and similar post-mortem publicity initiatives made on her behalf. But the question is: who has the legal right to profit from all this merchandising revenue?

The right of publicity has been described as the right of an individual, especially a public figure or a celebrity, to control the commercial value of his name or picture and to prevent others from availing this value for their commercial benefit. The right of publicity is governed primarily by state law, and while it is clearly enforceable during an individual’s lifetime, states differ over whether the right is descendible.

At least 16 states currently recognize a postmortem right of publicity under common law or by statutes that explicitly provide for a right that survives death. New York is one of the states that has specifically rejected any descendible right of publicity.

Marilyn Monroe LLC (MMLLC) holds and manages all of Monroe’s intellectual property, including her right of publicity. When Monroe died in 1962, New York State did not recognized a postmortem right of publicity.

Since it was never determined whether Monroe was domiciled in California or New York, multiple lawsuits ensued in both of these states.

To avoid a conflict of laws between states, a testator should include intellectual property as well as tangible assets when preparing his/her Last Will.

If you want to make your Will, please contact Jeffrey Weinstein Esq. at 212-693-3737