Perlin Estate Planning

North Carolina Court Dismisses Conspiracy Claims in Estate of Elderly Woman

“A Forsyth County judge completely dismissed a lawsuit that claims a Winston-Salem lawyer, Forsyth County clerks and others conspired to steal $1.4M in assets from a Winston-Salem woman who had been declared mentally incompetent.”

Judge John O. Craig of Forsyth Superior Court in North Carolina granted a motion to dismiss the County Clerk of Court from the lawsuit filed by an attorney representing the estate of a former nurse and businesswoman, Mary Thompson, who died in 2014.

According to the Wealth Advisor’s article, “Judge Denies $1.4M County Clerk Estate "Conspiracy",” the lawsuit alleged that Bryan Thompson, a public administrator in Forsyth County, was illegally appointed guardian of Mary’s estate. The suit claimed Thompson, along with County clerks and others, formed a criminal conspiracy designed to gain control of Mary’s estate and steal $1.4 million in assets from her.

The lawsuit also named as defendants William Speaks, an attorney who represented Thompson’s niece, and Fred Flynt, an attorney appointed as Thompson’s guardian ad litem.

Everyone except the Clerk of Court had been previously dismissed as defendants in the lawsuit.

Attorneys for Bryan Thompson sought sanctions against Alston and Doris Tucker, the current administrator for Mary Thompson’s estate. The judge didn’t decide on that request and took it under advisement, until either one of two things happened—Alston declined to appeal Craig’s decision after a period of 30 days or Alston files an appeal and the N.C. Court of Appeals issues a decision, which could take a year.

This long battle started in 2007, when Mary’s family first challenged Bryan Thompson’s appointment as guardian of the estate. The family didn’t like how Bryan was appointed. Leslie Pope, Mary Thompson’s niece, filed a petition to have her aunt declared mentally incompetent and to have a guardian appointed to oversee the estate. At a hearing, Mary was found to be mentally incompetent and another order appointed Bryan Thompson as guardian of the estate.

Alston argued that those orders were invalid because they weren’t time stamped with the clerk’s office. If the orders are invalid, then Bryan was never officially the guardian of Mary’s estate, Alston argued. If he wasn’t the guardian of the estate, then anything he did on behalf of the estate was illegal, the lawsuit says. In fact, in 2014, the state Court of Appeals ruled that the appointment of Bryan was “without legal authority”, precisely because Hinshaw’s order on mental incompetency was never entered into the clerk’s office.

The Clerk of Court has said this was a mistake and it had been standard practice for years for clerks not to stamp orders that had been prepared and executed by representatives in the clerk’s office. The issue, she said, has since been fixed.  However, Alston contends this wasn’t a mere error. He claims that Bryan Thompson, several Forsyth County clerks, Speaks and Flynt conspired together in a criminal enterprise to illegally take over the estates of Mary Thompson and other people and steal their assets.

Alston said that Bryan stole monthly retirement checks, social-security checks, commissions, and all her real and personal property. He estimated the value of her estate at $1.4 to $1.6 million.  However, according to a motion that Thompson’s attorneys filed, Mary had 48 properties. At one point, they were valued at about $1 million, but a 2012 bankruptcy report indicated a net value of $66,120, the motion said.

Bryan sold seven of them, and then, after he filed for bankruptcy on behalf of the estate in 2011, the bankruptcy trustee sold 12 other properties. Another 29 properties were legally abandoned, Thompson’s attorneys said in court documents.

The parties are in a holding pattern, until the courts make their determination.

Reference: The Wealth Advisor (March 19, 2018) “Judge Denies $1.4M County Clerk Estate "Conspiracy"”

Son Sues Mom for His Inheritance: Beware Untrustworthy Estate Administration in South Florida, Too!

Family members suing each other over inheritances and other estate matters is fairly common. A recent case in North Carolina, however, is a bit unusual in that the matter centers on a disbarred attorney.

Tols Detmer’s father, Fritz Detmer, left his son an estate worth several hundred thousand dollars. The inheritance was supposed to be made available to the son when he turned 18.

Now, Tols is 19 and he is suing his own mother, Charlinette Detmer, for hundreds of thousands of dollars he says she improperly received from the estate.

The lawsuit alleges that Charlinette was supposed to receive $60,000 from the estate, but instead the lawyer administering the estate, Peter Capece, gave her $311,000. It is alleged that Capece gave Charlinette this windfall because she knew that Capece was misappropriating money from the estate for his own benefit.

In effect, the money paid to Charlinette was hush money.

Capece did not get away with his scheme, however. He was disbarred for appropriating $1.6 million from the estate of Fritz Detmer. Although the Fritz Detmer estate is suing Capece, you cannot get blood from a turnip. He has recently filed for bankruptcy.

The estate has put a home owned by Charlinette up for sale to pay Tols Detmer the money his mother owes him.

The Charlotte Observer reported this story in an article titled “Son sues his mom over Lake Norman estate proceeds.”

One thing this estate tale illustrates is that it is extremely important to choose a lawyer to administer an estate who is trustworthy.

If Capece had not misappropriated funds from the estate, then the mother never would have been able to request hush money. Of course, that does not absolve the mother in this case for taking the money that should have rightfully belonged to her son.

Protect your assets! If you live in South Florida, I can help! Call me (305-443-3104) to get started.

• I'm an exceptionally experienced Florida Bar Board Certified Estate Planning Attorney,
• Plus, I'm a Florida Bar Board Certified Elder Law Attorney, focusing on ALL legal issues related to aging,
• I've prepared over 4,000 estate plans in 30+ years in practice,
• have administered over 600 estates through Probate, and
• am a Certified Financial Planner Professional™, plus
• I am also a Florida Certified Public Accountant (CPA). 

Of course, if you would like more information about General Estate Planning in South Florida, I have a very informative website you are welcome to visit for more information.

Reference: Charlotte Observer (August 20, 2015) “Son sues his mom over Lake Norman estate proceeds.”

Image Credit: Courtroom sketch of the 1904 trial of Edward S. Ellis, a Los Angeles deputy street superintendent charged with accepting bribes to approve public works projects without inspecting them. On December 31, 1904, the judge called a mistrial due to a hung jury. The women visible in the foreground are Ellis's wife and mother. 1 January 1905.  (Los Angeles Herald). [Public domain], via Wikimedia Commons

How Do I Use an IRA Trust in South Florida to Protect My Heirs?

There are many different types of effective trusts to accomplish specific things in retirement and estate planning. Unfortunately though, many people don’t ever consider the use of trusts because of the perception that they are only for the ultra-wealthy. Actually, trusts are used by millions of people who just simply care about what happens to their wealth once they pass away. So, are you trustworthy?

The Kokomo Perspective recently posted an article titled “Are You Trustworthy?”.  The article explains that due to all the recent rule and distribution changes to IRAs and other retirement accounts, the IRA Trust has become much more popular and effective. An IRA Trust is a special type of revocable living trust that’s designed to receive your IRA accounts for the benefit of your loved ones after you pass away. The IRA Trust offers both protection and control.

The original article explains that an IRA is frequently one of the largest assets passed on to beneficiaries. However, as we hear about in the news, the inheritance of large sums of money by children or other heirs unable to handle wealth can cause many problems. The U.S. Supreme Court held last year that inherited IRAs are not protected from bankruptcy, so many individuals worry about losing an inherited IRA to creditors, divorce, taxes, or reckless spending. These concerns have sent many IRA owners searching for a better way to protect this money for their heirs.

Give me a call (305-443-3104) to discuss the IRA trust and its benefits in the State of Florida; I'm an exceptionally experienced Florida Bar Board Certified Estate Planning Attorney. We can determine if this tool will work for your situation.

Did I mention that I am also a Florida Certified Public Accountant (CPA) and a Florida Bar Board Certified Elder Law Attorney? Of course, if you would like more information about General Estate Planning in South Florida, I have a very informative website you are welcome to visit for more information.

Reference: Kokomo Perspective (March 29, 2015) “Are You Trustworthy?”

IRAs and The Supreme Court: The Latest Rulings Affect Florida Retirees

When is an individual retirement account not a retirement account? When the Supreme Court says so. In a unanimous decision in June, the Supreme Court ruled that an inherited IRA is no longer a retirement account—noting that a beneficiary can withdraw any amount from the account without penalty whenever he or she wishes—and so isn’t protected from creditors under federal bankruptcy law.

Because of the recent unanimous high court decision, experts and families are taking steps to protect IRA assets for beneficiaries in the event those heirs declare bankruptcy. 

A recent Wall Street Journal article, "Court Ruling Sparks Rush to Shield IRAs," finds that many advisers are urging clients to create a trust as the IRA’s beneficiary, or to set up an IRA as a trust account while the owner is still alive. Either way, the original owner has access to the money before he or she dies. Depending on the type and terms, trusts can shield assets (including an IRA) against creditors.

According to the original article, the challenge is identifying and employing the right kind of trust—this can be really tough as these issues are complex. The type of trust you should use will depend on a bunch of factors, such as the number of beneficiaries, the tax goals, and asset-protection goals. 

But what if I already own an inherited IRA? 

Based on where you live and how long you have been living there, the assets might yet fall under bankruptcy protection. Alaska, Arizona, Florida, Missouri, North Carolina, Ohio, South Carolina, and Texas all have laws that give this protection in some circumstances, even after the Supreme Court's decision.

One more thing: the Supreme Court did not directly address surviving spouses who inherit an IRA. Their status is far from certain, but some experts suggest that they roll over an inherited IRA into one under their own name. 

Talk with your estate planning attorney and see what the new Supreme Court decision on IRAs means for your assets and your plans.

For more information about my unique expertise in South Florida as a Certified Public Accountant & a Certified Financial Planner, coupled with my dual specializations from the Florida Bar (Board Certified Attorney in Elder Law and in Wills, Trusts & Estate Law), please visit my website.

Reference: Wall Street Journal (Oct. 12, 2014) "Court Ruling Sparks Rush to Shield IRAs"

Image Credit: Saving Money by Piotr Siedlecki. Public Domain.

Estate Planning Lessons from the Late Anna Nicole Smith Can be Applied in Coral Gables Estates

After nearly 20 years of litigation and fighting in the press, the conflict between the estates of Anna Nicole Smith and her billionaire husband J. Howard Marshall has been resolved. On Monday August 18, 2014, a federal judge in Orange County rejected Smith’s estate’s last-ditch attempt to obtain roughly $44 million from the late Texas oil tycoon in the form of sanctions for delaying tactics employed by Marshall’s heir and lawyers throughout the long-running battle. The judge noted that Smith’s estate failed to provide sufficient evidence of actual damages suffered as a result of the aforementioned tactics.

A recent WealthManagement.com article, titled "Anna Nicole Smith’s Estate Runs Out of Options," illustrates the critical importance of creating estate planning documents that have as much detail as possible. 

Anna Nicole Smith was a famous Guess Jeans model and Playboy Playmate. She married J. Howard Marshall in 1994, after meeting in the Texas strip club where Smith worked. Smith was 26, and he was 89. Marshall died 14 months later and left his entire $1.6 billion estate to his son, Pierce. Anna Nicole received nothing. 

Smith challenged the will soon after Marshall’s death. She said he promised to leave her more than $300 million in addition to the cash and gifts he lavished on her during his life (which were worth about $8 million). A Houston court found the will to be valid, and the ruling was affirmed on appeal.

Smith then moved to California and filed for bankruptcy, claiming that Marshall promised her a larger share of his estate than she received. The court awarded her $450 million from Marshall’s estate, later reduced to $89 million by a federal judge in 2002. However, on appeal, the Ninth Circuit Court of Appeals reversed the bankruptcy court’s decision, holding that a bankruptcy judge did not have authority to rule on a probate case. Years later, the Supreme Court affirmed the Ninth Circuit's decision.

Marshall’s will had more judges picking it apart than one can imagine. His will had to survive intense examination from federal courts all over the country for almost 20 years. 

Billionaires and Bunnies alike need to have the best estate planning. So, too, do those of us who fit into neither of those categories. The way to do this is to speak with an experienced estate planning attorney. Eliminate issues that have a habit of popping up when money is involved, and you are no longer around to tell your family exactly what you meant in your will.

For more information about my expertise as a dual Florida Bar Board Certified Attorney (Elder Law and Wills, Trusts & Estate Law), as well as to find out information about General Estate Planning matters in South Florida, please visit my website.

Reference: WealthManagement.com (September 2, 2014) "Anna Nicole Smith’s Estate Runs Out of Options"

Image Credit: Anna Nicole Smith 2003 (cropped) By doggiesrule04 (photos 164) [CC-BY-SA-2.0 (https://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons