Executor Seeks to Resign from Role in Texas Lawyer’s Estate

Conference roomWhen the famous Texas attorney John O’Quinn died in 2009, he had over 1,200 automobiles—but no children and no heirs.

  1. Gerald Treece, who was a longtime friend of the late O'Quinn, recently filed a petition to resign as executor of O'Quinn's estate. He served in that role since shortly after O'Quinn died in October 2009 when he crashed into a tree going 60 miles an hour with his Chevy Suburban and his own private driver and friend in the passenger seat.

Texas Lawyer’s recent article, “Treece Will Resign as O'Quinn Estate Executor,” reports that an amended petition was filed on June 21 in O'Quinn's probate case.

Treece, vice president and associate dean of advocacy at the South Texas College of Law in Houston, informed the court that he wants to resign, despite that fact the administration of O'Quinn's estate is not finished, and there are the outstanding claims still pending, due to litigation.

The details of the April 6 settlement, which followed a one-day mediation, are confidential. But on June 6, the John M. O'Quinn Foundation filed an application with Houston Probate Court Judge Mike Wood to appoint J. Cary Gray, the managing partner of Gray, Reed & McGraw in Houston, as his successor.

The foundation contended that it’s necessary to appoint a successor to Treece to serve as successor independent administrator, "because claims against the decedent's estate remain and all of the assets in the decedent's estate have not been distributed." In addition, the foundation said that the alternate executors in O'Quinn's estate, both declined to serve as Treece's successor. One of them is the president of the board of trustees of the foundation, and the other is Bank of America.

Treece is asking for a "full judicial discharge" from all liability for all of the actions that he’s taken as executor. In his application to resign as executor, he noted that this would include all fiduciary fees. He also asked the judge to have the estate cover his attorney's fees and expenses relating to any litigation related to the estate. This would cover a lawsuit filed by O'Quinn's longtime companion against a funeral home seeking to get O'Quinn's body returned to Texas from Louisiana.

Reference: Texas Lawyer (June 23, 2017) “Treece Will Resign as O'Quinn Estate Executor”


Playboy Playmate’s Estate Files Wrongful Death Suit against Chiropractor

DoctorFox News, in its recent article, “Playboy model Katie May's estate sues chiropractor for wrongful death,” reports that the father of Katie May's eight-year-old daughter filed the suit a few weeks ago in Los Angeles County Superior Court. Alex Maimon is seeking a judgement to help pay for the girl’s college education.

The lawsuit, filed by Maimon, claims that Doctor of Chiropractic Eric Marc Swartz was negligent and his care resulted in May's death. The plaintiff says the chiropractor should have sent May to the hospital, instead of treating her after she suffered a serious neck injury during a photo shoot.

May would still be alive today, if not for the chiropractor’s “forceful" and "aggressive" adjustments that tore an artery in her neck and caused her fatal stroke, the lawsuit claims. The complaint goes on to say that Swartz’s “aggressive neck manipulation” caused deadly “bilateral vertebral artery dissections” that blocked blood flow to May’s brain.

May, who was known as the "Queen of Snapchat," died in February 2016, after she suffered a stroke at age 34.

An October 2016 coroner's report ruled her death to be accidental. But Maimon's lawsuit questions the timing of May's death: she died four days after being treated by Dr. Swartz.

Ronald Richards, the attorney for May’s estate, filed the lawsuit against Swartz and his Los Angeles practice, Back to Total Health, on June 14. The lawsuit alleges medical malpractice and negligence, specifically that Swartz mistreated Katie May by adjusting her neck and that he should have recognized she required immediate attention at a hospital.

The Los Angeles County Coroner determined that May died because of an injury sustained during a “neck manipulation by chiropractor.” The plaintiff contends that Dr. Swartz adjusted her neck in a manner that severed her left vertebral artery. This injury blocked blood flow to the brain and resulted in the stroke.

“I think that the coroner’s report corroborates that it was the chiropractor’s manipulation that was the cause of death,” Richards told People Magazine.

Maimon’s complaint states that he first tried to work with the insurance carrier for the chiropractor but had no success. “The carrier forced (Maimon) to file this action by refusing to attend a mediation to help Mia with some college money,” the suit alleges.

Reference: Fox News (June 15, 2017) “Playboy model Katie May's estate sues chiropractor for wrongful death”


Penn State Football Coach’s Estate Looks to Settle Lawsuit

Conference roomThe estate of former Penn State football coaching legend Joe Paterno, along with former assistant coaches Jay Paterno and Bill Kenney, are suing the NCAA, its president Mark Emmert and former executive committee chair Ed Ray in Centre County Court in Pennsylvania.

The 2013 lawsuit alleges claims of commercial disparagement, defamation, tortious interference and conspiracy. These claims were based on the use of the Louis Freeh report commissioned by Penn State in the NCAA’s consent decree for sanctions with Penn State, concerning the university’s handling of reports of child sexual abuse by Paterno’s former assistant coach Jerry Sandusky.

Specially-presiding Senior Judge John Leete of Potter County recently granted a joint request by the Paternos and the NCAA to file under seal motions for summary judgment and response and reply briefs.

Wealth Advisor reported, in its article titled “Paterno Heirs Move Toward Closure,” that attorneys for both parties filed a joint motion, asking the judge to file under seal “forthcoming dispositive motions.”

That means they’d ask the judge to decide the case, as well as supporting, responsive and reply briefs for those motions.

“The parties anticipate that the motions, responses, replies and supporting briefs will contain portions that have been designated ‘Confidential’ or ‘Highly Confidential'” under a protective order issued by Leete in 2014, Paterno attorney Thomas Weber and NCAA attorney Thomas Scott wrote.

The parties will file redacted public versions at the same time as the sealed documents.

Paterno was fired as head football coach of Penn State in November 2011, after the Pennsylvania Office of the Attorney General revealed the grand jury presentment recommending charges against Sandusky. Sandusky had already retired from his position as the Nittany Lions defensive coordinator, and Paterno died two months later of lung cancer.

The consent decree was replaced, and most of the sanctions were repealed or terminated early. The Paterno estate alleges that the report and sanctions resulted in damage to commercial interests and values, and harmed the former assistant coaches’ ability to find similar work.

Reference: Wealth Advisor (June 19, 2017) “Paterno Heirs Move Toward Closure”


How Do I Collect as the Sole Beneficiary for a Family Member Who Lives Out-of-State?

Question markNJ.com’s recent article, “Inheriting money from out-of-state relative,” explains that with a power of attorney, you will be able to manage the family member's affairs during his lifetime, if he or she is unable to do so. However, a power of attorney stops at the death of the principal.

When considering the tax ramifications, there are two distinct types of taxes that may be imposed by a state where the person is a resident at the time of their death. An estate tax may be imposed on the estate of an individual before the property is transferred to the beneficiary. There is also the inheritance tax. This tax is imposed on certain individuals who inherit property from an estate. Whether a state estate tax or inheritance tax must be paid, is dependent on the laws of the state where the person was a resident at the time of death, not the state where the beneficiary lives.

The estate of a person who is a resident of New York and dies between April 1, 2017 and Dec. 31, 2018 is subject to a New York estate tax, only if the value of the estate exceeds $5.25 million. On January 1, 2019, the New York estate tax exemption will equal the federal estate tax exemption. It is anticipated to be about $5.9 million.

In some states, the relationship between the testator and the heirs may make them subject to an inheritance tax.

If the relative, for example, owns real property in New Jersey, there’s an inheritance tax of 15% imposed by the state on the value of that real property. When a person inherits the estate assets, there would be a step-up in basis for any appreciated assets. This means that there shouldn’t be any capital gains tax on those assets, if they’re disposed of for the date of death values.

Talk to a qualified estate planning attorney to understand the consequences for you and your family member's estate.

Reference: NJ.com (June 6, 2017) “Inheriting money from out-of-state relative”


Ohio Supreme Court Says High Bar to Find Undue Influence in Will

WillA recent case in Ohio demonstrates the very high threshold that must be met to establish that a decedent was unduly influenced or lacked testamentary capacity. In Young v. Bellamy, the Supreme Court of Ohio showed just how difficult it is to overturn a will.

In this case, the person contesting the will—a granddaughter of the decedent—was written out of the decedent’s estate plan in a series of wills executed over a period of five years. In turn, the proponents were incrementally given a larger share of the estate. The granddaughter claimed that her grandfather was unduly influenced and lacked testamentary capacity at the time that he executed his last will.

However, to refute her claim, the other relatives gave the court affidavits of three disinterested witnesses who were with the 96-year-old decedent, when he signed the will. All of these individuals said they saw no indication of lack of capacity, susceptibility to undue influence or actual coercion or duress. One said he was “an engaging elderly man.”

To invalidate a will, undue influence “must so overpower and subjugate the mind of the testator as to destroy his free agency and make him express the will of another rather than his own, and the mere presence of influence is not sufficient,” the Court wrote. Further, proof of undue influence requires: (1) a susceptible testator; (2) another's opportunity to exert influence on the testator; (3) the fact of improper influence exerted or attempted; and (4) a result showing the effect of such influence.

In response to the three affidavits, the contesting granddaughter submitted her own affidavit describing her relationship with the decedent, alleging that the decedent said he had no memory of executing a prior will and asserting that the decedent had requested that she contact an attorney to change the will.

The Supreme Court wrote that testamentary capacity exists when the testator has sufficient mind to: (1) understand the nature of the business in which he is engaged; (2) comprehend generally the nature and extent of the property which constitutes his estate; (3) hold in his mind the names and identity of those who have natural claims on his bounty; and (4) appreciate his relation to the members of his family.

The Supreme Court agreed with the trial court and the Court of Appeals, both of which found that the granddaughter’s self-serving affidavit wasn’t enough to overcome the presumption of validity of the will and the three affidavits of those who observed the testator on the date of execution of the will.

Summary judgment was granted for the other family members and the granddaughter was out of luck.

Reference: Supreme Court of Ohio (May 24, 2017) “Young v. Bellamy”

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