They told him, “Don’t you ever come around here”

“Don’t wanna see your face, you better disappear”

The fire’s in their eyes and their words are really clear

So beat it,  just beat it.

The Beatles certainly had taxes on their minds when they wrote and sang “Taxman” in their seminal album Revolver in 1966, but does it strain belief  too much to think that the late Michael Jackson had the IRS in mind when he wrote the lyrics for his hit “Beat It” on the equally classic and seminal  Thriller album in 1982? After all, what comes to mind but the IRS when you encounter lyrics like “[t]he fire’s in their eyes and their words are really clear.”

The estate of Michael Jackson has long been in litigation with the IRS over issues related to the valuation of the late artist’s estate.  A person’s taxable estate is usually easy to measure because assets generally consist of easily valued properties. But what is an artist’s image and likeness worth? Reasonable minds may differ. Elvis Presley’s estate made more money in 2020 than the singer had in 1977, the year he died.

The IRS looks to maximize the estate tax liability by increasing the value of the assets while the estate looks to minimize it by downplaying the value of the same assets. “Experts” are retained by both sides to testify that what is up is down and what is down is up (depending upon which side they represent). The issues of valuation were particularly acute with Michael Jackson’s estate because of the troubled nature of his reputation at the end of his life and his efforts at making a comeback in what had been a long and brilliant career in music. As The New York Times reported:

But there was another matter that has taken more than seven years to litigate: Jackson’s tax bill with the Internal Revenue Service, in which the government and the estate held vastly different views about what Jackson’s name and likeness were worth when he died.

The I.R.S. thought they were worth $161 million . The estate put it at just $2,105 [yes, dear reader, there were “experts” ready, willing, and able to testify to those two extremes]— arguing that Jackson’s reputation was in tatters at the end of his life, after years of lurid reporting on his eccentric lifestyle and a widely covered trial on child molestation charges, in which Jackson was acquitted.

On Monday [May 3, 2021], in a closely watched case that may have implications for other celebrity estates, Judge Mark V. Holmes of United States Tax Court ruled that Jackson’s name and likeness were worth $4.2 million, rejecting many of the I.R.S.’s arguments. The decision will significantly lower the estate’s tax burden from the government’s first assessment. . .

The Jackson case has been watched closely as a guide for how celebrity estates may be valued, and for their tax liabilities. Among the major estates with large tax issues still before the I.R.S. are those of Prince and Aretha Franklin.[1]

Issues of valuation are rarely as large or as publicized as was the case with the late Mr. Jackson, but they remain a prime concern of the estate attorney when preparing or defending the estate tax return. The IRS initially valued Michael Jackson’s likeness and image as worth about $434 million at death (later graciously amended down to $161 million), while the estate said it was only worth about $2,000.

If you are interested in reading the judge’s decision (and it is a long but interesting  one), it is available at: Assets KPMG

By the way, what did the judge decide? He valued the asset at $4.1 million, a win for  the estate and some useful guidance for future valuation cases.

[1]  New York Times Michael Jackson Estate


Parents who have children approaching adulthood, in New York, that being when the child reaches his or her eighteenth birthday, know that even such a happy occasion can bring its own version of angst.  Watching one’s child undertake the rights and responsibilities of adulthood involves letting go of the control the parent has had since the child was born.  What parent does not wonder, “Is my child mature enough to make responsible decisions?  Will he or she exercise good judgment?”

Parents of children who are intellectually disabled or developmentally disabled and who approaching their eighteen birthday face a myriad of issues.  On the one-hand, the child will be legally recognized as an adult and, as such, the only person allowed to make his or her medical, financial and personal decisions; on the other hand, the particular child, because of his or her disabilities, may never be able to make these decisions.  The child may not have the intellect or the proper development to choose where to live, to make medical decisions, or, in the worst-case scenario, end-of-life decisions.

There is a legal mechanism that allows parents, and legal guardians, of an intellectually disabled or developmentally disabled child to become that child’s legal guardian when that child attains legal adulthood.  It is Article 17-A of the Surrogate’s Court Procedure Act.  It requires commencing a proceeding in Surrogate’s Court in the county where the child resides.  After the proper application is made, there is typically a hearing where it must be proved to the satisfaction of the court that the person is either intellectually disabled or developmentally disabled, or both, such that the person is incapable of managing his or her own affairs because of the disability, and that the disability is permanent or likely to continue indefinitely.

The statute requires the certification of the intellectual or developmental disability by one licensed physician and one licensed psychologist, or by two licensed physicians, at least one of whom must be familiar with or has professional knowledge about caring for and treating individuals with the particular intellectual or developmental disability.  Further, the court will consider whether the appointment of a guardian or guardians is in the best interests of the allegedly disabled person and whether the applicant or applicants are suitable for the position.

If these requisites are met, after the hearing, the court will appoint a guardian or guardians for the intellectually or developmentally disabled person.  The guardian or guardians will have the right to make that person’s decisions indefinitely.   Since this deprives a person of the rights he or she would otherwise have as an adult, the court takes this type of appointment seriously, as one would expect.  In fact, the court-appointed guardian or guardians will have to account on an annual basis for all of their ward’s finances, and they are subject to removal if the court finds any financial or other improprieties.

Article 17-A is the solution to what would otherwise present an untenable situation.



Today’s blog entry is short and “sweet,” devoted to recent articles from Forbes, RealMoney,[1] and MarketWatch[2] that are worth your time. The Forbes article is called “How To Beat Massive Estate & Income Tax Hikes.”[3] A quote from the article that will suffice to keep this blog current and informative:

“If ever there was a time to do smart estate planning, now is it. If you move quickly you can still shelter millions – even tens of millions – using the right sort of trusts, but if you wait until the law changes and the threshold drops, you’re pretty well sunk, grandpa or no.”

That being said, Jim Cramer at Real Money is unafraid of changes in the capital gain tax. In the linked article he states a couple of his investment rules:

One of my oldest rules, from my days of helping wealthy individuals at Goldman Sachs, is pretty controversial: you must never fear the tax man. I do not care if you have a 44% tax rate or a 20% capital gains rate, if you are driven by concerns about paying that tax more than you care about the fundamentals, you might end up losing a lot more money than you would ever pay the government.

Hence another rule of mine. I never care what your basis is, where you bought it, higher or lower than the current stock price. It means nothing to me. What constitutes a stock that should be sold regardless of the taxman? I think you need to ask yourself if the company you own stock in might be facing an existential crisis. If that’s the case, say, because it is a so-so retailer in a series of so-so malls or because it might be a company with no earnings or prospect of earnings any time soon or because the company’s out of money with no prospects of becoming profitable, then it should be sold whether Biden succeeds in changing the tax code or not.





For the 99.5%.

A funny thing happened on the way to President Biden’s inauguration. What had been a trickle in the few years before the election became a flood after November 2020.[1]  Famous artists started selling their song catalogs. Bob Dylan sold his songs for a reported $300,000,000. He was not the first to do so.  Paul Simon,  Blondie, Shakira, Barry Manilow, Neil Young, Chrissie Hynde, and many other notables of the music world have sold their publishing rights for millions of dollars.


A website frequented by the rich and famous, Celebrity Net Worth,[2] tells us that “[p]erhaps the most intriguing reason musicians may sell their catalogs: they’re privy to a special tax rate on self-created works. Musicians owe 20 percent in capital gains tax rates on their music. That includes album sales, streaming, licensing, and any other royalty income. If they had to pay ordinary tax rates, a musician could be taxed up to 37 percent on their earnings. ” While this does not tell the complete and accurate factors involved, it is certainly a reason why the recent popularity in selling song catalogs. For example, with interest rates at historic lows, professionals in the music industry saw an opportunity that not only benefited the artists but also provided a leveraged income stream for many years to come that would vastly outweigh the purchase price. Hence, the rise of companies like Primary Wave and Hipgnosis Songs.

Why now?

Perhaps the times they are a-changin, and perhaps the tax benefits given to artists will soon disappear.  Bernie Sanders, the senator from Vermont, recently introduced his “For the 99.5% Act” in the Senate. [3] A concise overview of the proposal can be found at the website of Wealth Management. Com.[4]  The proposal includes federal estate tax rate increases to 45% for estates over $3.5 million with further increased rates up to 65% for estates over $1 billion. The basic exclusion amount will be a $3.5 million estate tax exemption and a $1 million lifetime exemption for gifts. The basic exclusion amount will be a $3.5 million estate tax exemption and a $1 million lifetime exemption for gifts. But so what? The current law was scheduled to sunset in 2025 anyway and few expected the rates to remain as they are now. One thing is certainly blowin’ in the wind, the capital gains tax is likely to increase and artists are taking advantage of the current law now.

The article from Wealth Management lists some planning strategies in light of possible changes in the law.[5] They are worth reviewing .


Will the most radical of Sen. Sanders’ proposals be enacted into law? Most professionals do not believe so. But then again, who knows? Even President Biden has proposed imposing a top long-term capital gains tax rate of 39.6%. We all remember what the poet sang:

Come writers and critics

Who prophesize with your pen

And keep your eyes wide

The chance won’t come again

And don’t speak too soon

For the wheel’s still in spin

And there’s no tellin’ who

That it’s namin’


[1] Tell me that you’ve ever seen Rolling Stone quoted in a Trusts and Estates blog?




[5] Obvious disclaimer, this is not offered as legal advice, nor is it intended to be relied upon by readers. If you find yourself in the 0.5% targeted by Sen. Sanders then congratulations on your great success and start seeking advice soon.

Tom’s father recently passed away.  We have been friends for many years and share a love for movies and plays. Tom is a film and theatre historian and writer of some note. Needless to say, I am neither (hence, “movies and plays”). Tom, even with his vast erudition, is gifted with a profound lack of pretension and a genuine interest in the next person’s opinion. We are both great fans of the movies of Stanley Kubrick, Terrence Malick and the plays of Conor McPherson, Tom Stoppard. To listen to the two of us discuss favorite movies or plays would be like listening to Albert Einstein happily conversing with a high school physics student. In fact, Dr. Einstein did just that with an acquaintance of mine, an attorney who wrote to the great scientist when the attorney was a student at the Bronx High School of Science. Upon graduation from law school and marriage and leaving home, his parents discarded all his baseball cards and all his letters from Einstein!

When Tom’s father died, Tom’s great worry was that his father’s debts would become his debts. After a brief discussion on the nature of his father’s assets and how they were titled, I was able to reassure Tom of two things: 1) that not only could Tom’s assets not be used to pay his father’s debts, but also 2) that much of his father’s modest estate would pass to him without being subject to those debts. Why? Ah, thereby hangs a tale. Let’s tell it.

When a person dies, what happens to his or her debts?   Attorneys are allergic to categorical statements or answers. Hence, the attorney’s typical answer to any question is “yes and no,” or “it depends.”  In this case, however, it is accurate to say that debts survive the decedent and must be paid from the decedent’s estate assets before any beneficiary receives a legacy, provided these debts are valid and timely, and provided that they were part of the decedent’s probate or intestate estate.

What do we mean by a decedent’s probate or intestate estate? The term has a few meanings. There are several types of assets of a decedent that may be immune from the clutches of creditors because they do not “pass” through the decedent’s estate. It might be useful to illustrate this fact with an example.

Mom dies.  Her wealth consisted of the following:

  1. The house in which she lived. However, seven years before her death she deeded the house to her son and even filed a gift tax return.  At the date of transfer and death the house was worth $320,000 and $500,000, respectively.
  2. A bank account in the mother’s name showing a balance of $143,000.00.
  3. Another bank account opened with the mother’s money but created as a joint account with right of survivorship with her son.  The account contained $88,000.00.
  4. A 401k account that held $160,000.00 in assets and designated the decedent’s son as the beneficiary.
  5. A life insurance policy in the amount of $100,000.00 with the son designated as the beneficiary.
  6. An outstanding balance on the decedent’s American Express account of $18,000.00.
  7. An outstanding balance on the decedent’s MasterCard account of $22,000.00.
  8. An outstanding balance on the decedent’s Visa account of $11,000.00
  9. A private, unsecured debt supported by a promissory note on a loan from a friend in the amount of $200,000.

Decedent’s Will gave her entire estate to her son.  How much was in her probate estate?  The mother’s only asset that was subject to the Will is $143,000.00, the amount in her name alone in the bank account.

Decedent’s “total” estate assets (at least as it might be calculated by the IRS for estate tax purposes):

$500,000        The house[1]

$143,000         The bank account

$88,000         The joint bank account

$160,000         The 401k account

$100,000         Proceeds from the life insurance policy

$991,000         Total estate passing or passed to the son


Decedent’s “probate”[2] estate

$143,000         The bank account


Decedent’s Debts:

$18,000       American Express balance

$22,000      MasterCard balance

$11,000       Visa balance

$200,000      Loan balance

$251,000      Total Indebtedness

One might think that there were plenty of assets owned by the mother to satisfy all the debts. One would be wrong. The creditors of mother’s estate would be able to collect on their debts only from the $143,000 bank account, and that amount would be reduced by administration expenses (like attorney’s fees, heh, heh, heh). Mom’s remaining assets passed to her son by operation of law or by the designation of a beneficiary. They are immune from her creditors. I know, I know, you attorneys reading this will be saying to yourself, “but what if,” and “but suppose…” This is why we attorneys hate definitive answers to any questions. It is conceivable that there are circumstances under which some of these non-probate assets could be brought back into the estate and collected by the creditors.

But not likely.

[1]  Although the house was gifted to the son years before the mother’s death, and the transfer was a legitimate gift that did not render the mother insolvent, its value may still find its way into an estate tax return as an “adjusted taxable gift.” Happily for the reader, there is no need to consider this concept in any detail here.

[2] The “probate” estate consists of assets that will be governed by the decedent’s Will. The assets excluded from this list are not probate assets because they are governed by beneficiary designations or by the operation of law.

I have been practicing in the area of trusts and estates litigation for so long that it is rare that I even raise an eyebrow at what people will do and say about their families in order to gain an advantage in a probate contest or other estate proceeding.  I also have developed a varied practice in guardianships, having represented petitioners and alleged incapacitated persons, and having been appointed many times as a court evaluator.  The court evaluator is the person in a Mental Hygiene Law Article 81 guardianship proceeding appointed to be the so-called “eyes and ears” of the court to report to the judge after conducting a thorough investigation of whether the alleged incapacitated person needs a guardian to handle any or all of that person’s personal needs or property management.  Again, I have seen the best and the worst of people in that aspect of my practice.  Luckily, in the Article 81 arena, the good has outweighed the bad as most litigants have the alleged incapacitated person’s best interests at heart when they commence an Article 81 proceeding; the hoped-for result is the appointment of a guardian to help someone who can no longer handle his or her personal needs and/or property management and “cannot adequately understand and appreciate the nature and consequences of such inability” (Mental Hygiene Law § 81.02 (b)).  Indeed, incapacity must be proved at a hearing by “clear and convincing evidence” demonstrating that the individual “is likely to suffer harm” as a result of his or her infirmities (id.).   Given that the alleged incapacitated person’s very liberty interests are at stake, it is no wonder that the standard is as strict as it is and that the statute affords the incapacitated person due process, including the right to a jury trial.  Think of it from your perspective:  How would you react if someone alleged that you could not take care of your finances, your living arrangements, your health, and even end-of-life decisions?

The value of Article 81 is stated in its legislative purpose.  Unlike its predecessors of conservatorships and committees, which offered no flexibility when a person was found to need assistance with finances or personal needs, Article 81 is designed to “promote the public welfare by establishing a guardianship system which is appropriate to satisfy either personal or property management needs of an incapacitated person in a manner tailored to the individual needs of that person, which takes into account the personal wishes, preferences and desires of that person, and which affords the person the greatest amount of independence and self-determination and participation in all the decisions affecting such person’s life” (Mental Hygiene Law § 81.01).

That does not mean there is no potential for abuse.  I recently was appointed as a court evaluator in an Article 81 proceeding involving a woman who was in a nursing facility after having been hospitalized because she was unable to walk.  After several months in the nursing facility, she still was unable to get out of bed by herself or walk, even with the aid of a walker.  The nursing facility commenced an Article 81 proceeding seeking the appointment of a guardian for the woman.  However, after meeting with the alleged incapacitated person, for whom the court wisely had appointed counsel, it was obvious there was simply no justification for alleging, much less determining, that she needed a guardian.  This was borne out by my interviews with her relatives and even with her social worker at the nursing facility, who told me that the woman was “cognitively intact.”  A review of her medical and psychological records, which were obtained with the woman’s consent, affirmed this.  With just a little digging, I learned that the proceeding was brought because the woman had a billing dispute with the nursing facility and would not pay her bill.   The nursing facility had the right to expect payment, but not at the expense of a person’s liberty interests.

Often, nursing facilities commence Article 81 proceedings in order to have a guardian appointed for an individual in its care who is eligible for Medicaid, but for whom no one is available to apply for the benefits.  This is not an abuse, when the alleged incapacitated person can be said to meet the criteria for needing a property management guardian.  However, that was not the case here.  Commencing an Article 81 proceeding alleging that the woman in question lacked capacity was nothing other than a flagrant abuse of the statute’s intended purpose.  Fortunately, the nursing facility, though its attorney, responded to reason and offered to withdraw the proceeding prior to the hearing.  Had it not, my report to the court would have recommended, in strong terms, that the nursing facility’s request for the appointment of a guardian be denied.  Certainly, this was a situation where recommending sanctions would have been appropriate.  Further, the woman’s court-appointed attorney would have had the option to move to dismiss the proceeding.  And, of course, at the hearing, the judge would have had the opportunity to question the woman and, undoubtedly, would have determined that the woman was not in need of a guardian.

With my eyebrow back in alignment with its mate, I am relieved that Article 81 contains rigorous due process requirements.



Promises, Promises was, of course, a classic Broadway musical with music by Burt Bacharach, lyrics by Hal David, and book by Neil Simon. For baseball fans this group represents, like the 1927 Yankees, a veritable “murderers’ row” of genius. It introduced classic songs like “I Say a Little Prayer,” “A House Is Not a Home,”  “I’ll Never Fall in Love Again,” and “Promises, Promises,” all immortalized by the great Dionne Warrick.

So what does this have to do with divorce agreements and estates of deceased ex-spouses? Enough to warrant a blog entry.  The Moneyist is a useful, well-written, and regular feature of the investment website MarketWatch. It is written by Quentin Fottrell. The topic of a recent article was: “My father’s divorce decree says his kids will inherit his house — but he later put it in a trust for his third wife. Which one wins out?” (The article is linked below.)

This fact pattern is a familiar one and it plays out in a variety of scenarios and many of those scenarios would create an estate obligation to give the house (or its date of death market value) to the decedent’s children from the first marriage. Most frequently, one sees a dispute about an obligation in a divorce setting that requires the decedent to maintain life insurance for his or her ex-spouse or children. Before the ink on the divorce decree is dry, the obligated spouse lets the life insurance policy lapse. (A marriage may be a mere mortal thing, but bitterness and spite live forever.) Years later, when that obligated ex-spouse dies, the beneficiaries ask for their insurance proceeds only to find there are none. Do they have a valid claim against the estate? In New York, and under the right circumstances, they do.

Interested in some relevant cases on point? See these links:

New York Law Cases

Rogers vs. Rogers Law Case

See this link for the MarketWatch article:


This entry is occasioned by a recent article from Prof. Gerry W. Breyer, a very prominent scholar in the field of trusts and estates.  A Grave Error:  A Man Attempting to Fake His Own Death Was Caught Because of a Typo, by Gerry W. Beyer (the Governor Preston E. Smith Regents Professor of Law, Texas Tech Univ. School of Law).

A Long Island man was scheduled to be sentenced for a crime. On the date of his sentencing his attorney appeared alone and informed the court that his client  had died in New Jersey and produced a death certificate supplied to the attorney by the man’s grieving fiancé. The district attorney was suspicious because the death certificate contained several misspellings of the word “registry.” (The document spelled the word “regsitry.”) Upon investigation, it turned out that New Jersey officials were not deficient in their spelling but that the death certificate was a forgery. The defendant is now alive but not well; he is in much more trouble.

All attorneys reading this story will have breathed a sigh of relief when they realize that the  attorney was as misled by his client and his client’s  fiancé as was the court and the prosecutor. It may be a stretch, but perhaps there is a lesson or two here relevant to the practice of trusts and estates. If not, then at least it was a pretty good story. Don’t you think? It made me laugh to beat the band.

One.  The official death certificate is a necessary proof of death. Obvious and usually there is no difficulty obtaining such a document when a person has died. But there are times when a death certificate is unavailable because the person has gone missing and the court is called upon to declare a missing person dead.  If the proof before the court shows that a missing person was exposed to a specific peril then the court can declare that person dead.  Alternatively, if the  person was missing for a continuous and unexplained period of three years, then the court can declare him or her dead. The FBI’s National Crime Information Center stated in its 2019 Missing Person and Unidentified Person statistics that as of December 31, 2019, there were approximately 87,500 active missing person records. (Youth under the age of 18 accounted for 35% of the total, and 44% of the missing persons were under 21.)

Two. The importance of attending to the details of language extends beyond the typographical error. It includes the choice of words themselves in a legal instrument. The courts frequently are called upon to untangle  knots of uncertainty caused by the ambiguous choice of words in a testamentary instrument.  The person who signed the instrument is no longer available to explain what his or her intention was, so the courts have to rely on an ancient body of common law guidelines to help them determine what the meaning was. In the parlance of our times, these are called “construction proceedings.”

Suppose a Will provides “I give and bequeath to my sister, xxxxx, any and all household items which she desires to take from my principal residence after my decease. Anything which she does not take from my principal residence shall become part of my residuary estate.”  What is the meaning of the phrase “household items?” Does the definition include the extensive and valuable art collection of the testator? If it does, then the artworks go to the decedent’s sister. If the words “household items” are interpreted to exclude art objects, then the testator’s residuary beneficiaries are entitled to them. Reasonable minds may differ, but the court is obliged to decide. If you are interested in the details of this case (the sister won), here is a link to it: Matter of Isenberg.

Bonus puzzle for coming this far: this blog entry contains two references to “The Big Lebowski.” What are they?

What!!! You haven’t seen the Coen Brothers’ movie? Shame on you. I think they really tied the piece together. Three.


In New York, is there a legal remedy for “wrongful life” when a hospital or a doctor refuses to follow the terms of a patient’s living will and his or her health care proxy’s instructions resulting in pain and suffering by the patient?

Most people have heard of legal actions for pain and suffering and wrongful death.  The former requires that the individual was aware of his or her pain (see, e.g., McDougald v Garber, 73 NY 246 [1989]).  Economic recovery belongs to the individual or, if that person subsequently dies, to his or her estate under the theory that the recovery is designed to compensate the individual for his or her pain and suffering (id. at 253-254).  In contrast, in an action for wrongful death, monetary recovery from the wrongdoer who is found to be responsible for the decedent’s death belongs to the decedent’s distributees, those relatives who would take under the laws of intestacy (if the decedent died without a will), and is designed to compensate them for any economic losses they suffer resulting from the decedent’s death (see, e.g., Heslin v County of Greene, 14 NY3d 71, 76 [2010]).

But, what is “wrongful life,” and is it actionable in New York?  Recently, Supreme Court, Bronx County, was called upon to consider these issues in Lanzetta v Montefiore Med. Ctr., 2021 NY Misc. Lexis 543 *, 2021 NY Slip Op 21026 (Sup Ct, Bronx County 2021).   In that case, plaintiff sought to recover damages for decedent’s twenty days of pain and suffering prior to his death allegedly caused by defendant, Montefiore Medical Center, when it administered life-sustaining medical treatment to decedent in contravention of decedent’s living will and the directives given by decedent’s health care agent (id. at *1-*3).  “Wrongful life” actions usually encompass a negligence or medical malpractice claim brought on behalf of a child who is born impaired, with the claim being that the child would have been better off if he or she was not born (id. at *3).  However, New York courts have determined that claims for “wrongful life” do not exist “‘because, as a matter of public policy, an infant born in an impaired state suffers no cognizable injury in being born compared to not having been born at all'” (id. at *3-*4, quoting B.F. v Reproductive Medicine Assocs. of New York 30 NY3d 608, 614 [2017]).  However, the Lanzetta action involved an elderly individual, not an infant, and the reasoning behind the Reproductive Medicine does not apply.

Relying on the Second Department case of Cronin v Jamaica Hosp. Med. Ctr., 60 AD3d 803 (2d Dept 2009), the Lanzetta court determined that the decedent did not sustain a legally cognizable injury as a result of defendant’s alleged failure to treat decedent in conformity with the directives in decedent’s living will and those provided by the decedent’s health care agent.  (id. at *7-*8).  In so finding, the Lanzetta court stated that plaintiff’s reliance on Public Health Law Article 29, which governs health care agents and proxies, was misplaced, because the “health care and proxies act,” as it is known, does not expressly or impliedly create a “private right of action” for the principal, or his or her estate, against the medical provider who violates the “statutory duty” to comply with the health care agent’s directives.  (id. at *5-*10).

Although the Lanzetta court recognized the importance of having one’s medical treatment wishes followed, the court determined that it was bound to conclude that a cause of action for “wrongful prolongation of life” does not exist in New York and dismissed the action.  In so doing, however, the court stated that whether there should be a common law action for wrongful life is for the appellate courts to determine and whether there should be a statutory right is for the Legislature for consider.  What do you think?


The governing principle of this blog is to be useful to the general public.  One way to accomplish this goal is to avoid the use of jargon; another way is to avoid reporting on the minutiae of the practice by rehashing the recent decisions from the courts.  (Attorneys have many outlets for such shoptalk.)

In this entry, we offer a modest proposal or two on ways of making estate planning and practice easier and less expensive (or, at the very least, giving New Yorkers more choices).

One.    Ante-Mortem Probate

“Ante-Mortem Probate.”  So much for our plan to avoid jargon.  This phrase simply means that a testator should has the right to have his or her Will certified as valid by the courts before the testator dies. Once dead, the testator is probably unable to testify as to his or her intent and capacity (short of an admissible séance). But while still alive, the testator can certainly prove his or her mental capacity, freedom from coercion, etc. In other words, one can call it pre-death probate.

At this point, many New York Trusts and Estates attorneys will have either fainted from an attack of the vapors or are frothing at the mouth in rage at the notion of pre-death probate. Having the court certify the validity of a testamentary plan will strike the local practitioner as a very radical proposal that has been studied and rejected.

Opponents will drag out some hoary old legal maxims (“the living have no heirs,” “a will is an ambulatory document”). However, one would hardly designate states like Delaware or Ohio as bastions of radicalism (or the seven other states that permit such a practice). These states have had pre-death probate for many years (in some cases for over forty years). While New York does not authorize pre-death probate, it has available many strategies that can be used to prevent an expensive and nasty probate contest. Clients should be made aware of these strategies when they inform their attorneys of their intent to disinherit an evil child or to leave all or much of their wealth to charity to the detriment of their children. Disinheritance of a distributee (“next of kin”) frequently provokes a probate contest.

The topic of ante-mortem probate has a long scholarly pedigree.  When the drafters of the Uniform Probate Code (a model proposal put together by the National Conference of Commissioners on Uniform State Laws, a committee of legal scholars and practitioners) studied the topic they unanimously agreed on the wisdom of ante-mortem probate but they could not agree on the means of implementing it. It turns out the devil, as usual, was in the details and not the concept because there are several approaches for implementing a plan of pre-death probate.  The drafters of the Uniform Probate Code could not agree on which method to adopt. We will not rehearse here the several techniques of giving life to this proposal (this is a blog entry after all, not a law review note or article).  If the reader is interested in a detailed look at the topic, then you can refer to any one of the following:

  1. An excellent overview of the topic listing the various models of implementing the use of pre-death probate is “No ‘Dead Giveaways’: Finding a Viable Model of Ante-Mortem Probate for New Jersey”

By Joseph A. Romano, Esq.

Seton Hall Law Review, Vol. 48, p. 1683. 2018

Seton Law Review

  1. Another model for implementing pre-death probate is examined here:

The Commissioners’ Model of Ante-Mortem Probate

Joe Savoie, Esq, Tekell, Book, Allen & Morris, L.L.P

The Commissioners’ Model

  1. Finally, the attorneys reading this blog entry will know the American College of Trusts and Estates Counsel (ACTEC) as the preeminent national organization of the best attorneys in the field. They recently produced a podcast discussing the experiences of attorneys in two states that have enacted enabling legislation for ante-mortem probate (Delaware and New Hampshire):

ACTEC Foundation

TWO.   Service of Process

There I go again, more jargon.  “Service of process” is merely a term that refers to the  manner by which interested parties to a court proceeding are given proper notice of the litigation so that they can appear and protect their interests.  Once the court has obtained proper jurisdiction over a party, it can proceed to act on the relief requested in the complaint (called a  petition in the Surrogate’s Court).  In most New York trial courts a defendant in a civil matter (called a respondent in Surrogate’s Court) must be served in person with the notice of the proceeding, the summons and complaint (called a citation and petition in Surrogate’s Court).  If the plaintiff is unable to serve the defendant personally, then the law permits the plaintiff to choose alternative means of making service without a court order.  The same procedure does not apply to proceedings in the Surrogate’s Court. In Surrogate’s Court, the petitioner (the plaintiff) must serve personally a New Yorker and if he or she fails to do so then application must be made to the Surrogate for an order approving an alternative means of service.

An illustration may be helpful to make sense of this.  Suppose the nominated executor of a decedent’s Will is unable to obtain the consent to probate a will from the decedent’s three adult children because the will leaves everything to a charity.  One child lives in New Jersey, another in Connecticut, while the third lives in New York.  The governing statute (Surrogate’s Court Procedure Act 307) permits the New Jersey and Connecticut siblings to be served by mail (certified mail return receipt requested, or overnight mail) but the New Yorker must be served in person unless the court orders otherwise.  In the Supreme Court, under the governing law (CPLR §308), if the New Yorker is avoiding personal service, then the plaintiff is free to use alternatives to personal service without resort to the court for an order. Not so in Surrogate’s Court. Why? I don’t know.

Therefore, when the matter appears on the court’s calendar the out-of-state siblings may appear (personally or by their attorneys) while the New Yorker does not appear.  The Surrogate will have to adjourn the matter until the New Yorker is properly served. This results in an exchange between the Surrogate and the attorney for the petitioner (the person seeking that probate of the Will) that will be incomprehensible to the laypersons from New Jersey and Connecticut. An example:

Clerk: “Number 4 on the Probate Calendar, estate of Jane Doe.”

The child from New Jersey: “Here!”

The child from Connecticut: “Here, your Honor.”

The Surrogate (to the attorney for the petitioner): “Counselor, the file is marked ‘jurisdiction incomplete’.”

Attorney: “Yes, your Honor, I request a supplemental citation be issued approving alternative service by virtue of an affirmation of due diligence and a proposed order I have with me and would like to file.”

The Surrogate: “I’ll review it, mark the calendar ‘Supp. Cite.'”

Should the disinherited children for New Jersey and Connecticut ask the attorney what just happened, they will be told that the court adjourned the whole thing and they will either have to appear again or retain counsel to appear on their behalf. In other words, a waste of time and a waste of money.