Anna Nicoles will--where to probate?

[Earl_Snake-Hips_Tucker]

ANS died in Florida, but was, apparently, living in the Bahamas.

If the press reports are to be believed, her will stated that everything would go to her deceased son.

Presumably, her son died intestate. Therefore “someone’s” laws of intestacy would be in effect. Who is first in line? The Bahamas? California?

My understanding of intestacy is that the estate goes to the surviving next of kin. Howard K. Stern said that would be DannieLynn (sp?).

Assuming it’s under the laws of (whatever) US state, is that accurate? Is the father (of the deceased son) legally eligible to receive part of the estate?

[Ludovic]

Huhuhuhuh - you said “will”.

[alphaboi867]

@Earl Snake-Hips Tucker

…Assuming it’s under the laws of (whatever) US state, is that accurate? Is the father (of the deceased son) legally eligible to receive part of the estate?

No, but since her only other heir (assuming her marriage to Stern is invalid) is a six month old. IANAL, but presumably assets would be held in trust for Dannielyn until she turns 18. This includes any potential winnings from the Marshal estate. However whoever ends up with custody of Dannielyn would likely have some access to the money in order to raise her.

[pravnik]

From what Stern said in the news, it sounds like he’s saying that because Daniel predeceased Anna Nicole, her will fails entirely and the gift goes to Danielynn under the laws of intestate succession, since she was unmarried and had one child at death (Anna Nicole’s intestacy, not Daniel’s). If the property passes through the will, there’s a possibility some of Daniel’s other family members might be heirs-at-law as well under the anti-lapse statutes of some state or another, piling one probate fight on top of another. As far as venue, hard to tell. It looks like Florida requires you to file in the county of domicile at death, so Florida might be out and it might be California or the Bahamas.

[Gfactor]

@pravnik

It looks like Florida requires you to file in the county of domicile at death, so Florida might be out and it might be California or the Bahamas.

Well, it’s a bit more complicated:

733.101 Venue of probate proceedings.–

(1) The venue for probate of wills and granting letters shall be:

(a) In the county in this state where the decedent was domiciled.

(b) If the decedent had no domicile in this state, then in any county where the decedent’s property is located.

(c) If the decedent had no domicile in this state and possessed no property in this state, then in the county where any debtor of the decedent resides.

(2) For the purpose of this section, a married woman whose husband is an alien or a nonresident of Florida may establish or designate a separate domicile in this state.

(3) Whenever a proceeding is filed laying venue in an improper county, the court may transfer the action in the same manner as provided in the Florida Rules of Civil Procedure. Any action taken by the court or the parties before the transfer is not affected by the improper venue.

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0733/SEC101.HTM&Title=->2006->Ch0733->Section%20101#0733.101

So if she owned the home that she lived in in Florida or someone owed her money in Florida, Florida is possible. Plus the statute makes clear that the venue provisions aren’t jurisdictional–if they were, then the last sentence of (3) couldn’t apply.

Also, then, since venue objections are waivable, if she filed there and nobody complained, she’d still be ok.

Also also, domicile is not the same as residence. If she left Florida without the intention of changing her permanent residence, she’s still domiciled there. http://en.wikipedia.org/wiki/Domicile_(law)#Domicile_of_choice (sorry for the Wiki cite, busy day).

[Gfactor]

@Earl Snake-Hips Tucker

ANS died in Florida, but was, apparently, living in the Bahamas.

If the press reports are to be believed, her will stated that everything would go to her deceased son.

Presumably, her son died intestate. Therefore “someone’s” laws of intestacy would be in effect. Who is first in line? The Bahamas? California?

My understanding of intestacy is that the estate goes to the surviving next of kin. Howard K. Stern said that would be DannieLynn (sp?).

Assuming it’s under the laws of (whatever) US state, is that accurate? Is the father (of the deceased son) legally eligible to receive part of the estate?

Florida’s law of intestate succession:

732.103 Share of other heirs.–The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows:

(1) To the lineal descendants of the decedent.

(2) If there is no lineal descendant, to the decedent’s father and mother equally, or to the survivor of them.

(3) If there is none of the foregoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.

(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order:

(a) To the grandfather and grandmother equally, or to the survivor of them.

(b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.

© If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.

(5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.

(6) If none of the foregoing, and if any of the descendants of the decedent’s great-grandparents were Holocaust victims as defined in s. 626.9543(3)(a), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the lineal descendants of the great-grandparents. The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004.

http://www.flsenate.gov/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0732/SEC103.HTM&Title=->2006->Ch0732->Section%20103#0732.103 (Emphasis added).

California law of intestate succession:

6402. Except as provided in Section 6402.5, the part of the
      intestate estate not passing to the surviving spouse or surviving
      domestic partner, as defined in subdivision (b) of Section 37, under
      Section 6401, or the entire intestate estate if there is no surviving
      spouse or domestic partner, passes as follows:
      (a)** To the issue of the decedent, the issue taking equally if they
      are all of the same degree of kinship to the decedent, but if of
      unequal degree those of more remote degree take in the manner
      provided in Section 240.**
      (b) If there is no surviving issue, to the decedent’s parent or
      parents equally. © If there is no surviving issue or parent, to the issue of the
      parents or either of them, the issue taking equally if they are all
      of the same degree of kinship to the decedent, but if of unequal
      degree those of more remote degree take in the manner provided in
      Section 240.

http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=48290828848+0+0+0&WAISaction=retrieve (Emphasis added).

Bahamian law of intestacy:

(b)
if the intestate-
(i)
leaves a husband or wife and-
(A)
one child, the surviving husband or wife shall take one half of the residuary estate and the remainder shall go to the child;
(B)
children, the surviving husband or wife shall take one half of the residuary estate and the remainder shall be distributed equally among the children;
(ii)
leaves children but no husband or wife, the residuary estate shall be distributed equally among the children and where there is only one child that child shall take the whole residuary estate;
(iii)
leaves no husband or wife and no children the residuary estate shall be distributed equally among the grandchildren and where there is only one grandchild that grandchild shall take the whole residuary estate;
(iv)
leaves no husband or wife, no children or no grandchildren, the residuary estate shall be distributed between his mother and father in equal shares if both survive the intestate, but, if only one survives the intestate, the survivor shall take the whole residuary estate;(v)
leaves no husband or wife or children, grandchildren, mother or father, then the residuary estate shall be distributed in the following manner-

firstly, to the brothers and sisters of the intestate in equal shares, and in the absence of any, then secondly, to the nephews and nieces of the intestate in equal shares, and in the absence of any, then thirdly, to the grandparents of the intestate and if more than one survive the intestate, in equal shares, but if there is no member of this class, then fourthly, to the uncles and aunts of the intestate (being brothers or sisters of a parent of the intestate) in equal shares, and if none, then fifthly, to the children of uncles and aunts of the intestate (being brothers or sisters of a parent of the intestate) in equal shares;
©
in default of any person taking an absolute interest under the foregoing provisions, the residuary estate of the intestate shall be distributed to the next of kin and in this paragraph “next of kin” means the closest living relative of the intestate.

http://laws.bahamas.gov.bs/statutes/statute_CHAPTER_116.html#Ch116s4 (Emphasis added).

[Gfactor]

@pravnik

If the property passes through the will, there’s a possibility some of Daniel’s other family members might be heirs-at-law as well under the anti-lapse statutes of some state or another, piling one probate fight on top of another.

Florida’s anti-lapse statute:

732.603 Antilapse; deceased devisee; class gifts.–Unless a contrary intention appears in the will:

(1) If a devisee or a beneficiary of a trust created by a will who is a grandparent, or a lineal descendant of a grandparent, of the testator:

(a) Is dead at the time of the execution of the will or at the termination of a trust interest created by a will,

(b) Fails to survive the testator, or

(c) Is required by the will or by operation of law to be treated as having predeceased the testator,

then the descendants of the devisee or beneficiary take per stirpes in place of the deceased devisee or beneficiary. A person who would have been a devisee under a class gift if that person had survived the testator shall be a devisee for purposes of this section whether that person died before or after the execution of the will.

(2) If a devisee or a beneficiary of a trust created by a will who is not a grandparent, or a descendant of a grandparent, of the testator:

(a) Is dead at the time of the execution of the will or at the termination of a trust interest created in a will,

(b) Fails to survive the testator, or

(c) Is required by the will or by operation of law to be treated as having predeceased the testator,

then the testamentary disposition to the devisee or beneficiary shall lapse unless an intention to substitute another appears in the will.

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0732/SEC603.HTM&Title=->2006->Ch0732->Section%20603#0732.603

[Gfactor]

Bahamian anti-lapse statute:

Unless a contrary intention appears from the will, if a devise fails or is void by reason of the death of the devisee in the lifetime of the testator or by reason of being contrary to law or otherwise, any real estate or interest comprised or intended to be comprised in that devise is deemed to be included in the residuary devise (if any) contained in the will.

http://laws.bahamas.gov.bs/statutes/statute_CHAPTER_115.html#Ch115s21

California anti-lapse statutes:

21110. (a) Subject to subdivision (b), if a transferee is dead when
       the instrument is executed, or fails or is treated as failing to
       survive the transferor or until a future time required by the
       instrument, the issue of the deceased transferee take in the
       transferee’s place in the manner provided in Section 240. A
       transferee under a class gift shall be a transferee for the purpose
       of this subdivision unless the transferee’s death occurred before the
       execution of the instrument and that fact was known to the
       transferor when the instrument was executed.
       (b) The issue of a deceased transferee do not take in the
       transferee’s place if the instrument expresses a contrary intention
       or a substitute disposition. A requirement that the initial
       transferee survive the transferor or survive for a specified period
       of time after the death of the transferor constitutes a contrary
       intention. A requirement that the initial transferee survive until a
       future time that is related to the probate of the transferor’s will
       or administration of the estate of the transferor constitutes a
       contrary intention.
       © As used in this section, “transferee” means a person who is
       kindred of the transferor or kindred of a surviving, deceased, or
       former spouse of the transferor.
21111. (a) Except as provided in subdivision (b) and subject to
       Section 21110, if a transfer fails for any reason, the property is
       transferred as follows:
       (1) If the transferring instrument provides for an alternative
       disposition in the event the transfer fails, the property is
       transferred according to the terms of the instrument.
       (2) If the transferring instrument does not provide for an
       alternative disposition but does provide for the transfer of a
       residue, the property becomes a part of the residue transferred under
       the instrument.
       (3) If the transferring instrument does not provide for an
       alternative disposition and does not provide for the transfer of a
       residue, or if the transfer is itself a residuary gift, the property
       is transferred to the decedent’s estate.
       (b) Subject to Section 21110, if a residuary gift or a future
       interest is transferred to two or more persons and the share of a
       transferee fails for any reason, and no alternative disposition is
       provided, the share passes to the other transferees in proportion to
       their other interest in the residuary gift or the future interest.
       © A transfer of “all my estate” or words of similar import is a
       residuary gift for purposes of this section.
       (d) If failure of a future interest results in an intestacy, the
       property passes to the heirs of the transferor determined pursuant to
       Section 21114.

http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=4845437495+0+0+0&WAISaction=retrieve

[pravnik]

@Gfactor

Well, it’s a bit more complicated:

Statutes & Constitution :View Statutes :->2006->Ch0733->Section 101 : Online Sunshine

So if she owned the home that she lived in in Florida or someone owed her money in Florida, Florida is possible. Plus the statute makes clear that the venue provisions aren’t jurisdictional–if they were, then the last sentence of (3) couldn’t apply.

Did she live there? I thought she just happened to be in Florida when she died. I haven’t really been keeping close track, though.

[Gfactor]

@pravnik

Did she live there? I thought she just happened to be in Florida when she died. I haven’t really been keeping close track, though.

I haven’t been, either. And apparently I misread the OP, to boot. Although, I was just speculating with my father (a long-time probate lawyer) about whether she had an estate plan that would account for the sudden death of her adult son *and * her own death soon after. I’m still not convinced she didn’t.

[Gfactor]

This article discusses some of the issues: http://www.msnbc.msn.com/id/17114395/

[pravnik]

@Gfactor

I haven’t been, either. And apparently I misread the OP, to boot. Although, I was just speculating with my father (a long-time probate lawyer) about whether she had an estate plan that would account for the sudden death of her adult son *and * her own death soon after. I’m still not convinced she didn’t.

You’d sure think someone who stood to collect up to a $400+ million inheritance would have some pretty thorough estate planning of their own. In the meantime, where can I go to sign up for DNA testing? It’s worth a shot.

[Gfactor]

The latest:

A Florida court is expected later today to release what attorneys say is the last will and testament of former Playmate Anna Nicole Smith

The judge overseeing the dispute over her burial ordered attorneys to file a copy of the will, which has been the subject of intense speculation since Smith’s sudden death eight days ago.

http://www.cnn.com/2007/LAW/02/16/smith.ruling/index.html

[Doctor_Who]

This whole mess is shaping up to be a pretty damn good Law School Wills choice of law and pretermission essay.

[Arnold_Winkelried]

@Gfactor

This article discusses some of the issues: MSN | Outlook, Office, Skype, Bing, Breaking News, and Latest Videos

I don’t understand something in this whole financial mess. From the article:

The outcome of Anna Nicole’s lawsuit over her husband’s fortune hangs in the balance as does the amount of money to which she is entitled. Is it the $8 million her husband gave her, or the $474 million the bankruptcy court gave her, or the $88 million the federal court gave her?

Since nothing had been resolved, and she is dead now, why is any money going to her at all? Shouldn’t the lawsuit be null and void since one of parties is dead?

[Caffeine.addict]

Nope, not at all. Her estate becomes the successor party to these suits through the executor or administrator of the estate.

As for the choice of law issues, it is going to depend on where she was domiciled and where the assets are. If she didn’t own anything in Florida and didn’t live there then it will be pointless to have the estate probated there since there isn’t an estate to probate there. I would hope that her will drafted in 2001 would take into account the likelihood of her having more children and would have a provision to that effect. I wonder if the will had anything appointing a guardian for her son in the event that she should predecease him. It may be probative in determining who the future guardian of her daughter would be in the event that paternity for the kid isn’t determined.

[Walloon]

@Caffeine.addict

I would hope that her will drafted in 2001 would take into account the likelihood of her having more children and would have a provision to that effect.

It does — but not in the way you’d hope:

Article I — Family Declarations and Statutory Disinheritances
Except as otherwise provided in this Will, I have intentionally omitted to provide for my spouse and other heirs, including future spouses and children and other descendants now living and those hereafter born or adopted, as well as existing and future stepchildren and foster children.

[rocking_chair]

@Arnold Winkelried

I don’t understand something in this whole financial mess. From the article:

Since nothing had been resolved, and she is dead now, why is any money going to her at all? Shouldn’t the lawsuit be null and void since one of parties is dead?

two of the parties have passed on. pierce marshall and anna nicole smith. p.m.'s estate (his wife in charge) is pressing on. a.n.s.'s estate can continue the fight as well.

[Caffeine.addict]

@Walloon

It does — but not in the way you’d hope:

Has her will been posted anywhere online? I’d be curious to read it.

[Walloon]

Will of Vickie Lynn Marshall. (PDF)