Angela Barker & Associates, LLC
A Family Law, Wills & Trusts and Real Estate Newsletter August 2009
In This Issue


 

What's More Beneficial a Will or a Trust?
Since there has been so much talk about Michael Jackson's will. This is the perfect time to explain the differences between a will and a trust and also suggest some best practices for Will drafting.
A will is a written and signed statement made by a individual providing for the disposition of their property upon their death. It is a public document and it must go through probate court. A will is a good document to have because it expresses the testator (the deceased) intentions.

A trust on the otherhand, is a private document It gives the trustor (decease) more control of distribution of the assets and it contents are rarely revealed to the public.
Michael Jackson had both a will and a trust. Mr. Jackson's Will is commonly known as a pour over will. A pour over will ensures that any assets which were not included in the trust when it was drafted becomes assets of the trust upon the decedent's death or possession by the estate of the decedent.

For example, we recently learned that Michael Jackson's death was ruled a homicide. Should the family institute a civil wrongful death suit again those deemed responsible for Mr. Jackson's death and recover money damages. Any monies recover would be added to the trust.
I was able to review a copy of Mr. Jackson's will and although it was a well-drafted document the following best practices should have been followed.

(1) Mr. Jackson's will was drafted in 2002, nearly seven years ago. Many things may happen in seven years. Mr. Jackson may have made some decisions regarding the disposition of his property seven years ago that he would not have necessarily made today. You should take the opportunity to review your will every three years so to ensure that it is up-to-date and comports with your current wishes

(2) If you want to exclude close family members or individuals include a clause expressly excluding these persons by name. This it clear that you wanted to exclude them from the will and their absence from the will is not a mere over-sight. For example Mr. Jackson intentionally omitted his ex-wife Deborah Rowe by name. Hoewever he did not expressly exclude his father Joe Jackson.

(3) It is not a good practice to have the person(s) you appoint as your executor to also witness your will.
www.angelabarkerlaw.com


Greetings: September is fast approaching and finally it feels like summer at long last! This is the time to get out and enjoy the weather and the last hazy, lazy days of summer. Similar to many in the work-force I have learned to blend work and recreation. For example in July I went to Washington DC to attend the Elder Law Section of the New York State Bar Association Summer Meeting. The Summer Meeting was excellent. It was chock-full of information that trust and Estates Attorneys should know. I also got some time to visit the Smithsonian and stroll the National Mall. I hope you also had the opportunity to relax before the faster pace Fall season is upon us and we transition once again to full-work mode.
Life is a series of transitions and At the Law Office of Angela Barker & Associates, LLC, we are committed to help ease the transition through the various life stages: Whether it be a change in the family structure as a result of a death, marriage, divorce, or separation. We are there for you as you buy or sell your home, and we assist our clients in planning for their or their loved ones' golden years and help them pass their savings on to the next generation. People are our business. For the benefit of our clients and the communities we serve, we have developed this newsletter as a legal and consumer resource. Enjoy.

The Survivor Non-Custodial Parent Has A Superior Right Over any Other to Raise Children
When a child has two legal parents and one of them dies, the other takes custody. In his will Michael Jackson appointed his mother, Katherine Jackson, as guardian to raise his three minor children and not Deborah Rowe, although Ms. Rowe is the biological parent of his two eldest children and was involved in the children's lives to some extent.

According to New York State Law,upon the death of the custodial parent, the surviving parent has preference over all others to become guardian of the child[ern] and the deceased custodial parent may not appoint, by will, a third party as guardian.
New York Law states that the non-custodial parent has the right to raise the child [ren] superior to any third party unless there is extraordinary cricumstances. Extraordinary circumstances includes abandonment of the child by the non-custodial parent, unfitness, presistent neglect, surrender of custodial rights by the non-custodial prent, extended disruption of custody, or other equivalent but rare circumstances which would drastically affect the welfare of the child.

This custody issue was never litigated in California courts because Mrs. Jackson and Ms. Rowe entered into an agreement settling the custody issue of the children with Mrs. Jackson appointed as guardian of the children. If this issue were litigated in New York , barring extraordinary circumstances Mrs. Rowe would most likely have prevailed in obtaining custody of the two elder children.
Changes to New York's Power of Attorney Law
In the April 2009 Newsletter I stated that on January 27, 2009 Governor David Paterson amended the laws that govern the use of Power of Attonrey in New York. The revised Power of Attonrey law will go into effect on September 1, 2009. Power of Attonrey forms executed prior to September 1, 2009 will continue to be vaild.
The Power of Attonrey form is an effective tool for estate and financial planning and for avoiding the expense of guardianship. The following is a list of five changes to the current law :

(1) A notice to the Agent is added to the form to explain the Agents role, fiduciary obligtions and the legal limitations on the Agen'ts authority
(2) There is a section that explains how the Power of Attonrey can be revoked.
(3) The Principal can appoint someone to monitor the Agent's actions on behalf of the Principal, and the monitor has authority to request the Agent to provide a copy of the Power of Attorney and a copy of the documents of the transactions the Agent carried out for the Principal.
(4) Third Parties have the ability to refuse to accept a Power of Attorney based on reasoanble cause.
(5) Major gifts and other asset transfers must be set out in a major gifts rider.