By: Martin M. Shenkman, CPA, MBA, JD
James Brown Estate Lessons: James Brown left an amazing legacy of music and good deeds, but sadly he left behind family problems as well. Some valuable lessons can be learned from his problems. "Papa Don't Take No Mess but Papa seems to have left a mess, as Tomi Rae Hynie, the partner (widow, according to some press reports) of the deceased Godfather of Soul, James Brown, was reportedly locked out of their home "for estate legal reasons." I'm bewildered as to how Mr. Dynamite could leave such problems.
Tomi Rae Hynie was said to have been married to another man when she married Brown. If true, the latter marriage between Tomi Rae and Brown was ineffective. Because Brown and Tomi Rae never married after the termination of Tomi Rae's former marriage, they remained merely partners. The press reports that Brown's home, where Tomi Rae stayed with their 5-year-old son, was padlocked and she was denied access. A lawyer reported that "legal formalities" and "protocols" needed to be followed, and that Brown's estate was left in a trust for his children. That's why the world loves lawyers. Tomi Rae was quoted as stating that some were trying to discredit her to cut her out of inheriting his estate.
Although it sounds harsh, padlocking a home is not unusual. Securing the home of a person immediately after death is important. In many estates, especially those of celebrities, homes have to be secured to prevent people (burglars, yes, but family members, more importantly!) from walking off with art work, memorabilia, cash, jewelry and other valuables before they are catalogued so that they can be valued for tax purposes, and then distributed to the specific people the deceased wanted to benefit. This is serious. The executor (administrator if Brown died without a will, i.e., intestate) of Brown's estate is personally obligated to make sure all assets are valued properly and reported on the estate tax return, and that those assets are distributed to the people Brown designated. If the executor fails to do these things he can be sued personally. It's a real responsibility that has to be fulfilled to avoid potentially significant liability. But those goals can be achieved without harming loved ones.
Don't Mar Brown's Reputation with Legal Wrangling: The real facts remain foggy, but as too often happens with famous personalities, a lifetime of brilliant accomplishments, 50+ albums and so much more for Brown, sadly become tarnished by post death haggling over legalities and money. Brown's memory and heirs all deserve more. But this post death posturing and rumor-mongering can be minimized or avoided with a modicum of careful planning. Clearly written legal documents (will, trusts and more), proper ownership of assets, and a plan that addresses real issues not just legal technicalities, can avoid the problems that appear to have so quickly affected Brown's estate and memory. Did Brown want the mother of his 5-year-old son padlocked from his (their?) home? Did he really want "legal formalities" adhered to if this would be the result? Hard to imagine. If the lawyer says that assets were left to his children in trust, why are a young 5-year-old child and his mother locked out of his home? But not to worry, the lawyer has assured the press that it was not an act of "unkindness or an act of a lack of sympathy." Maybe, but the result doesn't seem that way.
What Might Really be Going On: How careful was Brown's planning? While time may tell, in most celebrity cases the spin becomes so thick that Brown's real wishes may never be known. Many people, especially those with an unmarried partner, can at least learn some lessons from the "Hardest Working Man in Show Business" on how not to handle an estate.
Trusts and other legal documents are not always available for public scrutiny, so that only a few selected people might actually know what is happening. It might be possible, as some media reports implied, that Tomi Rae is posturing for more of the estate than Brown left to her. It's just as possible that mistakes were made and Brown's partner and son are being harmed unintentionally.
Trusts: Some media reports indicate that Brown's assets are being left in trust for his children. Well, Tomi Rae's 5-year-old is Brown's son. It is common to name the surviving parent of a child along with a bank or family adviser as co-trustees. If that were the case Tomi Rae would have some input and control. It is also common to name multiple beneficiaries of a trust. For example, Brown could have left his house to a trust for his son, and that trust could have given Tomi Rae the right to live in the house until the son attained the age of 18. She could also have received a life estate in the house which would permit her to live in the house during her lifetime, but ultimate ownership remains with Brown's son and the right to use the property would revert to the son after Tomi Rae dies. A trust for a minor child could provide that support payments be made to the child's parent or guardian while the child is a minor (or for any other period). Tomi Rae is the obvious person to raise, live with, and have input on what her son gets. If Brown felt she didn't have the temperament or ability to serve as a co-trustee, he could have included provisions in a trust requiring the trustees to consider her needs, and her wishes, for their son. As for Tomi Rae, it is unclear what the status of the relationship was, but if Brown intended to provide for her, he could have also established a trust for her. He could have established almost any parameters for what Tomi Rae could receive from the trust. That trust, after some period of time (e.g., the son's attaining the age of majority, Tomi Rae's life, etc.) could end and distribute the remaining trust assets to any one of, or all, of his children. What was done by Brown remains to be seen, but there are a myriad of options for how he could have handled this. If Brown didn't provide for Tomi Rae was it intentional or due to the lack of legal guidance? There simply is not enough information to determine, but it is hard to believe that a man as talented as Brown didn't have the wherewithal to communicate his wishes clearly if the options were really explained to him.
Tomi Rae's Status: The media has continually brought up the strife that the couple had in the past. But it seems that they were together after those episodes. The media reports commented that Tomi Rae hadn't seen Brown for weeks, but the reports don't say why. The statements were made as if to imply that if Tomi Rae was important to Brown she would have been with him in his last days. But no one knows why she wasn't there; it might have been Brown's wishes. Not seeing Brown "for weeks" doesn't provide any information on how often they saw each other, or the nature of their relationship between the break up several years ago and the two weeks before Brown died. The negative implications may be wholly inappropriate. This may all have relevance to the determination of what Tomi Rae's relationship was with Brown, and her rights to his estate.
What Tomi Rae Might Do: Tomi Rae should have an attorney review Brown's will and all relevant documents to see what she and her son really are left, but legal action may be necessary to get copies of documents that are not public record. Depending on the applicable state law, Tomi Rae's first step might be to have her attorney file a legal objection to the probate of Brown's will (caveat), or appear and voice objection to the admission of the will (on her own behalf and/or on her son's behalf).
If Brown's estate was held in trusts formed and funded before he died, Tomi Rae's attorney may have to proceed against those trusts before assets are distributed, but that may be a harder if the trusts were irrevocable trusts.
Tomi Rae might litigate the status of her relationship with Brown and try to show that she was in fact his wife. In most states, the wife of a deceased husband is entitled to a minimum percentage or amount from the husband's estate even if she was specifically left out. This is called a spousal right of election. In some states this can be a third of the value of the entire estate. If Tomi Rae cannot prove that she was legally Brown's wife, she might try to find a legal argument to assert that because of their apparently attempted marriage, bearing his son, perhaps her and Brown's living together as husband and wife, and so forth, that she should be entitled to the treatment of a wife. She might claim that because of those facts Brown's estate should be prevented (estopped) from arguing that she was not entitled to be treated as his wife for inheritance purposes. In some states an argument that Tomi Rae should be treated as if she were his wife (common law spouse) might be made.
Tomi Rae might bring an action for palimony against Brown's estate claiming that something akin to post-death alimony should be paid. Tomi Rae might assert that Brown had promised her support. She might produce letters, witnesses and so on to corroborate these assertions and then try to enforce those promises against Brown's estate. Tomi Rae may separately bring actions against Brown's estate for child support for their son's care. Clever attorneys may devise a host of actions if Tomi Rae was left out.
There is always a catch. If Brown had a carefully executed estate plan wherein he devised a specific amount of money or any sort of bequest to Tomi Rae, he may have anticipated legal wrangling if she was dissatisfied with what he left her. Often times when a person fears that their will will be challenged after his or her death by family members or other beneficiaries who are dissatisfied with their inheritance an in terrorem clause will be included in the will. This clause specifically disinherits any beneficiary under a will who challenges the will (usually to get a bigger piece of the pie). Courts don't always recognize in terrorem clauses, but Tomi Rae may have to carefully weigh the possibility of losing what she is left in the will on the chance that she will succeed in a will contest.
Conclusion: It's a shame that reports on Brown's demise focus on issues other than his accomplishments. It's a shame that Tomi Rae and her son have to face these difficulties. It's a shame that the media has the right to make such private matters public, but it does. Careful planning, dealing with the real personal issues affecting your estate, informing people what you are doing while you are alive, treating tough issues compassionately even if you would prefer a different result, can prevent these issues whether you're a celebrity, or just an average Joe
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