Recently, I have had the opportunity to work on a number of projects two of which caught my eyes as they illustrate our firm’s value statement of “We Make A Difference.”
The first involved the designation in a client’s estate planning document of a “literary executor.” This particular case involved a client who is an author in the traditional sense – i.e. works published in hard cover books or those intended to be read on a Kindle or IPad. The literary executor would have the responsibility of protecting existing copyrights or extending protection which had been secured for previously unpublished works.
The second matter involved determining where a charitable distribution of some size should be directed when a distribution to the beneficiary or distributee designated in the document no longer exists would be impossible, impractical or illegal.
In the case of the author who wanted her works protected (and if necessary edited) by someone knowledgeable in such matters in a manner that would properly preserve and protect the author’s literary efforts, care was taken by the drafting attorney to select a person acceptable to the client, and upon review of the choices available granting sufficient powers to that person designated in the client’s documents to give meaningful options to that person (the designated literary executor) to carry out the intent of the client as well as protecting the asset of that client in the future. This would require that the person so designated have knowledge of the style and intentions of the person making the designation.
In these times of written social media, there is much expressed on the internet (blogs, etc.) that requires protection – especially in regard to copyrights.
The second matter required knowledge of what had formerly been solely in the province of case law – i.e. no formal statutory direction. However, the Florida Legislature has adopted, as have other states, a statute which declares that in the event an expressed charitable purpose becomes impossible or impractical of achievement, or becomes illegal, the gift does not fail. This statute grants the party who possesses that asset may distribute it to a similar if not identical charitable purpose.
In the recent case experienced by this office in this matter, it was not clear who or what would have received this bequest had it failed so it was determined that notice would be given to the Florida Department of State and a petition was filed with the courts seeking that money be paid over to a charity which was very similar in nature as well as in name. As the result of our firm’s extensive knowledge of the Sarasota/Manatee areas’ charitable organizations, we determined that in fact there was a charitable organization possessing virtually identical purposes as that named in the document. We produced witnesses and documents to that effect and based upon the Florida statute, the deceased clients documents and evidence presented to the Circuit Court as to the donor’s charitable intent and purposes, the court entered an Order directing that the amount in question be paid to the still existing charitable organization was the gift which was carried out the donor’s intent was made rather, than have the money in question (a six figure amount) escheat to the estate.
The case law that had been developed over time provided that in accordance with what had become known as the “cy pres” doctrine, the gift need not fail if a donor capable of carrying out the expressed charitable intent of the donor is available. (Cy Pres translates to “as near as possible.”)
In this matter, the firm’s knowledge of current law paired with extensive local knowledge brought about a prompt resolution to the matter. If you have questions or would like more information, please contact an attorney in our estate planning and trust administration services area.