Saw this yesterday and its making its predictable rounds (here and here and here) today. The actual decision was hard to find so I offer it to you here (PDF). I enjoy these decisions; the ones whose menial size belies the hefty weight of their potential impact. It seems a simple matter too: The Court was asked to determine the identity of decedent’s distributees entitled to receive notice of the probate of decedent’s will.
The decedent married his same-sex partner, J. Craig Leiby, in Montreal, Province of Quebec, Canada on June 7, 2008. He died on November 1, 2008 survived by Mr. Leiby and by three siblings. The decedent had no children. His parents predeceased him, as did another sibling, who also left no children.
Marriages valid where solemnized have long been recognized in New York; exceptions exist only for marriages affirmatively prohibited by New York law, or proscribed by “natural law” [citation omitted] [footnote omitted]. As decedent’s marriage was valid under the law of Canada, where performed, and falls into neither exception to the general rule, the marriage is entitled to recognition in New York [citation omitted].
Accordingly, Mr. Leiby is decedent’s surviving spouse and sole distributee. [Notice] in this probate proceeding need not issue under SCPA 1403(1)(a) or any other provision of law to any other person as distributee.
The ruling is boring insofar as it appears to merely affect notice, but its more interesting as a determination of standing… If the Judge’s ruling holds, then family members of gay or lesbian decedents who were married and left a surviving spouse would have no standing in probate, since they would be neither heirs nor legatees of the gay or lesbian decedent. Lacking standing they would not be able to challenge decedent’s will.
One of my favorite bloggers, Joel A. Schoenmeyer of the Death & Taxes Blog writes here about “the reverse mortgage probate problem and liquidity.”
A reverse mortgage results from a home owner age 62 or older converting the equity in their home into tax-free income without having to sell the home, give up title, or take on a new monthly mortgage payment. The reverse mortgage is aptly named because the payment stream is “reversed.” Instead of making monthly payments to a lender, as with a regular mortgage, a lender makes payments to you. It can be especially useful for the home owner but, as Joel points out, a real headache for their heirs after they pass away. The payments can be used to support a standard of living – which is nice – but I think the most powerful benefit from the reverse mortgage is that the income stream is not necessarily a countable resource for Medicaid eligibility.
I’ve encountered this situation in the probate context a few times recently: mom dies, reverse mortgage is now due, and guess what? The house can’t be sold because of the bad real estate market.
The bigger problem, of course, is one of estate liquidity. When a person dies, there are bills that have to be paid. Some of those bills are small, and some of them can be avoided. But certain bills can’t be avoided, and are going to cause a real headache for your survivors if you’ve left them with no liquid assets.
Which is all well-observed… Its a cost-benefit analysis really, done with the help of your financial planner and an attorney experienced in probate and Medicaid eligibility that can help determine if its a good fit for your situation. Its risky, but it may be worth it near the end.
Though I am sure that some degree of oversight was possible before – the probate court must have had personal jurisdiction over at least one of their PRs in the last, oh, I don’t know hundred or so years, a new Colorado statute gives state probate courts the following powers:
“[a] court, incident to a court proceeding, possesses and may employ all of the powers and authority expressed in the provisions of this part 5 to maintain the degree of supervision necessary to ensure the timely and proper administration of estates by fiduciaries over whom the court has obtained jurisdiction.”
The court can order accountings, inventories, etc. either on its own motion or on the motion of an interested party. No reason or justification is required.
Its that last sentence that is interesting.
All probate courts have oversight powers over estate representatives (otherwise we wouldn’t have such courts) but the degree of oversight is always attenuated by whom the court has jurisdiction over at the time, issues of standing and mootness and further by whom may ask a court to do what.