Joe Jackson is reported to be seeking “some manner” of support from the Michael Jackson estate.

Michael Jackson’s father is seeking an allowance from his son’s estate to help cover expenses that exceed $15,000 a month, according to court documents filed Friday.  The request seeking an unspecified amount for Joe Jackson was filed by lawyer Brian Oxman, who said there was no apparent reason for the administrators of the estate to not seek an allowance for the Jackson family patriarch.

The King of Pop’s 2002 will, however, omitted any mention of his father.  The two had an often-strained relationship, and Michael said at one point that he would get physically sick — as a child and as an adult — at the sight of his father.

The singer’s private trust calls for money to be paid to his mother, Katherine, his three young children, and various charities when his estate is distributed.

Under California Probate Law, during the time Michael’s case is still pending in the probate court, prior to final distribution to the named beneficiaries, family members may petition the court for a “family allowance.”  Top priority for family allowances go to a surviving spouse and minor children, but parents, and sisters and brothers can also ask for a temporary allowance.

It’s totally up to the probate court judge to decide if someone deserves a monthly family allowance.  The judge is allowed to a give an allowance if his or her discretion determines an allowance is necessary for the family member’s maintenance according to his or her circumstances. An allowance is possible if it can be shown that a parent of the decedent was actually dependent in whole or in part upon the decedent for support.

The filing claims that Joe, who suffers from diabetes, was supported by Michael before his sudden death through payments made to the singer’s mother, Katherine,  — Joe’s wife  — which were passed on to Joe.??Joe says his expenses exceed $20,000 per month, but his income from U.S. Social Security is a mere $1,700.

“Mr. Jackson’s circumstances require a family allowance because he is 81 years old and Michael Jackson supported him in the same manner as his wife, Katherine Jackson, who was Michael’s mother and who the court granted a family allowance on October 2,” says the petition.

If the court gives Joe an allowance it will be interesting to see if Jackie, Tito, Jermaine and Marlon, Rebbie, LaToya, Randy, and Janet follow with their own petitions to the court.

Stay tuned, a decision on Joe’s request comes on for hearing in January.

James D. Perry

Brooke Astor was a New York philanthropist and socialite who married into the wealthy Astor family. She died at the age of 105 in August 2007 with a $200 million fortune.

In the year before she died, a battle was raging in the courts as friends and family members attempted to have her only son, Anthony Marshall, removed from his position of guardianship over her on suspicion of elder abuse. Their reasons included allegations of financial fraud and medical neglect.

Just a few months ago, Marshall – himself now 85 years old – was convicted on 14 of 16 charges against him in his scheme to steal millions from his mother, including grand larceny and forging Astor’s signature on an amendment to her will.

You don’t need money to be a victim of elder abuse, though. Elder abuse includes financial, physical, and emotional abuse or neglect.

There are a great number of consumer scams and unscrupulous individuals (some in your own family) who are willing to take advantage of the elderly.

Last week I spent about 2 hours dealing with my 94 year old father’s bank because one of the sham mail order “charity” sweepstakes he entered used his $4 check to create phony checks and wrote one against his account for $300. I got them to reverse the charges, but they demanded that the account be closed.

To protect your finances, you should watch out for fake charities; ask to see a business permit from door-to-door solicitors; be wary of get-rich-quick investment schemes; and check references of repairmen and contractors.

Also, be extra careful in selecting people (including family members) for power of attorney, trustee status, or other access to your finances.

If you suspect elder abuse, or are a victim of elder abuse, don’t be afraid to report it to your local Adult Protective Services agency or the California Attorney General’s Elder and Dependent Adult Abuse Hotline (1-888-436-3600). If the abuse is occurring in a licensed long-term care facility, report it confidentially to your local Ombudsman (1-800-231-4024).

James D. Perry

A few weeks ago, I wrote about the expected death of the “death tax” due in 2010.

The $1.35 trillion tax cut package passed in 2001 included provisions for the estate tax rate decrease and the estate value exemption increase over time with the estate tax disappearing entirely in 2010. However, it would return in 2011 to a 55% tax rate and an exemption only on the first $1 million of an estate.

The question still remains, though, as to what Congress plans to do about it.

Congress could allow the law to stand meaning anyone who dies in 2010 doesn’t have to pay taxes on their estate. But, this doesn’t seem likely because of the tremendous impact it would have on the Treasury’s coffers.

Congress could pass legislation in the next two months to prevent the repeal from taking place, either extending current tax rates and exemptions, or putting forth a new plan. President Obama proposes a permanent estate tax of 45% exempting the first $3.5 million of an estate ($7 million for married couples).

Or, they could let 2010 come and pass a law that will be applied retroactively. Estate taxes aren’t due until nine months after the date of death making September 2010 the latest Congress has to make a decision. However, that could mean that the government may show up at your door, hat in hand looking to collect on the dearly departed’s estate long after you’ve filed the final tax returns.

There is a great deal of criticism against this tactic – most noting the difficulty of such retroactive tax collection on a deceased individual’s divvied up estate. It may even be unconstitutional.

Whatever Congress decides, it’s a decision best made sooner than later.

James D. Perry

Former NFL quarterback Steve McNair was shot and killed in what police have deemed a murder-suicide on July 4, 2009, apparently at the hand of his mistress.

He left a wife, Mechelle, and four young children (two from a previous relationship), and no will or estate plan.

McNair’s estate is sizeable. He earned more than $90 million in his playing career, not including marketing and endorsement deals. At last inventory, his widow listed his estate assets at around $19.6 million.

Mechelle McNair hired a probate attorney and was granted the legal authority to administer his estate. However, in the probate petition, she listed only herself and her natural children as heirs saying she didn’t have proof that the other two were McNair’s natural children.

McNair was ordered by Mississippi courts to provide child support for the two children, which seems to indicate that Mechelle really had no reason to doubt their parentage. And while it doesn’t appear that Mechelle plans to challenge their claims to the estate, the two children – both of whom have attorneys representing their interests – have not yet filed as beneficiaries.

And most recently, another Mississippi woman has come forward claiming that McNair fathered her 17 year-old daughter.

And these are just the claims from McNair’s heirs and potential heirs. This says nothing of his outstanding debts, one of which may be unpaid rent for an apartment that may have housed a second mistress.

This sad story of his death is further agitated by the fact that this family’s grief and indiscretions must be played out in public.

Even if you are not a celebrity, or weren’t murdered by your mistress, there is no privacy when your assets go through the probate court – not from the media nor from the nosy neighbors next door. Everything is out there for the world to see, your debts, an itemization of each of your assets, and the names and addresses of your heirs.

A good estate plan can avoid this. Just do it.

James D. Perry

Richard Pryor’s widow, Jennifer Lee, and one of his daughters, Elizabeth, have been warring in the courts over his estate since 2005.

Pryor was a well-known comedian and actor. He was married seven times to five different women. He and Jennifer married for the first time in 1981 and divorced in 1982. They married again in secret in 2001.

In the mid-1980s, he was diagnosed with multiple sclerosis. Towards the end of his life, Jennifer became his primary caretaker. Pryor died in 2005.

His daughter Elizabeth did not learn of Pryor’s remarriage until sometime after her father’s death. Elizabeth first tried to petition for annulment of Pryor’s marriage, alleging fraud and undue influence.

If she had been successful in getting the court to void the marriage, she may have succeeded in barring Jennifer’s claim to Pryor’s estate under the California law that prohibits caretakers from becoming beneficiaries.

The law exists to prevent caretakers from exercising undue influence over their elderly and infirm clients to gain access to their fortunes.

This case breaks new ground because of the issue of the fact Pryor was married, but that the marriage was not public, thereby making it impossible for anyone to know of or challenge the marriage as a product of undue influence or incapacity on the part of Pryor.

The court has now said that it’s too late to challenge a marriage after death. This looks like a road map to ripping off the elderly or infirm – just marry them in secret and keep it quiet until after they are dead.

James D. Perry

 Young or old, after the financial devastation of the six months, we have more reasons than ever take a fresh look at our financial and estate plans. Most of us planned for increased financial assets in the future. Very few of us has planned for less money

Those who are retired or plan to be in a few years don’t have a lot of time to sit tight and hope for a recovery.  In light of the steep declines in our fortunes, here are some questions to think about:

“How are you doing financially?” Falling stock prices, lower interest rates and reduced dividends at many stalwart companies may also have sliced retirees’ monthly income.  Besides causing sharp cuts in spending, it is wise now to consider new ways to get income out of existing assets.

Elderly parents may need your help revising their budgets, or they may need to rework their investment mix. Others may need to explore ways to tap their home equity. If that isn’t your strong suit, you may want to help them find a good independent financial adviser.  

From an estate planning point of view, if your assets have been substantially reduced, consider making changes to you estate plans.  As an example, one strategy would be to reduce or eliminate specific cash gifts so that the amount set aside in the will for children isn’t eaten up by the once smaller gifts earmarked for distant relatives, charities or grandchildren. 

Others may need to take a closer look at their children’s current and future needs in making changes to the estate plan.  When one child has lost a good job, or had other financial setbacks, the best approach may not be to leave the entire estate to all children in equal shares.

In these days of financial scandal we all need to be aware of people trying to sell financial products.  Among the possibilities: telemarketing scammers promising sweepstakes and lottery winnings in return for initial payments, and slick salesmen selling seniors products or services they don’t need. Senior citizens particularly need to beware of investments that may sound good — offering regular income or guaranteed returns — but that may be inappropriate for retirees.

Many annuities, for instance, come with steep expenses and “surrender” fees, which prevent the holder from withdrawing their money for several years without a huge penalty, making the funds inaccessible in an emergency.

Adult children should ask their parents that question if anybody is trying to sell them something. If the answer is yes, encourage them to talk with adviser before they buy anything.

James D. Perry

The New York Times ran a story this week on bill collectors who call relatives of the dear departed asking  if they want to settle the balance on a credit card or bank loan, or perhaps make that final cable tv bill or cellphone payment for the deceased person.

The next of kin on the other end of the line often have no legal obligation to assume the debt of a spouse, sibling or parent. But they often pay for it anyway.

Dead people are the newest frontier in debt collecting, and one of the healthiest parts of the industry. Improved database technology is making it easier to discover when estates are opened in the country’s 3,000 probate courts, giving collectors an opportunity to file timely claims.

The law varies from state to state. In California, survivors are generally not required to pay a dead relative’s bills from their own assets. In theory, however, collection agencies could go after any property inherited from the deceased.

Sentiment also plays a large role, the agencies say. Some relatives are loyal to the credit card or bank in question. Some feel a strong sense of morality, that all debts should be paid. Most of all, people feel they are honoring the wishes of their loved ones.

It is likely that most of those who pay a dead relative’s debts are unaware they may have no legal obligation.

I think collections from the next of kin of deceased persons should be better regulated. I doubt survivors are told up front that they are under no legal obligation to pay the debt.

My recommendation:  Unsecured creditors who want to seek payment for deceased persons’ debts should be required at beginning of call, to state that the survivor has no personal obligation to pay debt.  They should also be required to state the only legal recourse the creditor has is against the debtor’s estate.  

In my Orange County Probate practice I have seen many instances of family members paying bills for a deceased person from their own funds.  Think twice before you do this.  If there is a probate estate pending, notice is given to all creditors - they have 120 days to file a claim after the notice. If a creditor fails to file the claim with the court, the claim is barred.  

If your in doubt about a collection claim against a deceased relative, call a probate attorney.   

James D. Perry

Did you know that even deceased persons can be victims of identity theft? The deceased are easy targets because sometimes it takes weeks or months and in some cases years for financial institutions to find out about a death. The identity of a deceased person can be stolen in a variety of ways. Some identity thieves watch the obituaries, look up death certificates, or obtain private information from health care providers, unknowing relatives, or internet genealogy web sites.

Unfortunately, the thief may also be a family member who may take advantage of the situation or who has already been using that identity. This may be especially true if the deceased suffered from lengthy illness, mental confusion, or if there is disagreement among family members prior to the death.

Financial institutions are not immediately made aware that their customer is deceased. It takes time for the Social Security Administration to transmit the Death Master File to the financial industry. Until the institution receives word that the individual is deceased, the account remains active.

Although the deceased person doesn’t have to be concerned with his or her credit rating, identity theft can cause emotional distress for the family. Identity Theft Resource Center has valuable information about how to protect yourself and your deceased loved one from identity theft. They also have an information sheet with steps to take to decrease the risk of identity theft such as notifying the credit bureaus to put a “deceased” notation in their file, obtaining a copy of the decedent’s credit report, and a list of agencies and companies to notify of the death.

You can also stop the junk mail by contacting the Direct Marketing Association . There you can register to take the deceased’s name off mailing lists with their Deceased Do Not Contact List.

If your loved one had a will which needs to be probated or a trust which needs to be administered after death, contact my office. We can help with trust administration or probate.

In my experience as an Orange County Probate Lawyer, the vast majority of estates are settled without difficulty. Still about twenty percent of all estates have some type of conflict. These estate conflicts are expensive and directly impact the amount of estate assets, including cash, that pass on to the heirs.

Just having an up-to-date will or trust can rather easily prevent almost all of the most common conflicts among heirs and potential heirs.

The most common conflicts arise in mixed family situations. An elderly man or woman, with grown children, begins a new relationship after a spouse of many years dies or after a divorce. The children do not always accept the new partner with open arms. An added complication occurs when both new partners have children.

Absent a clearly defined will or trust, the children and the surviving spouse will seldom agree on a distribution of the estate. This is especially true in California if the parties were married, where, absent a will, all of the deceased’s community property and up to 2/3rds of his or her separate property goes to the surviving spouse. If the children fail to inherit, then they are upset. If the surviving partner fails to inherit, then he or she is upset.

The above situation is made even more difficult, when there is a significant age difference between the partners, where an elderly man or woman suddenly takes up with a much younger partner. In this case, even having a will or trust sometimes is only part of the solution. The children may challenge the will or trust alleging that the older partner was unjustly influenced to leave all of the estate to his or her partner.

Another variation on this theme is where the couple never marries and never registers as domestic partners, leaving the more recent partner entirely without support. Despite what the deceased intended, without a will or trust, general California law will apply to the estate and if the parties are not married, and never registered as domestic partners, all of the deceased’s property will go to his or her statutory heirs and not to a surviving partner.

Although more predominant among the elderly, these problems can arise in any situation where there is an untimely death. Lack of planning will almost always insure some type of conflict. If you find yourself in a situation where your heirs may have a potential conflict, it is absolutely important to have a clearly drawn will or trust that conforms strictly to legal requirements.

James D. Perry