As mentioned in an earlier post at this site, Michael Jackson’s Will is a Pour-Over Will leaving all of his assets which pass through probate court to his revocable trust. A scan of his purported Will is available on various websites. I have scanned the most complete copy I could find and published it at my firm’s website. You can access it at http://www.hamker.com/michael-jacksons-will.htm
Michael’s Will is very typical of a Pour-Over Will. His Will, executed on July 7, 2002, begins by stating Jackson’s name and that he is a resident of California. In article I, Michael states that he is unmarried and that his marriage to Deborah Jean Rowe Jackson is dissolved. He goes on to acknowledge his three children, Prince Michael Jackson, Jr., Paris Michael Katherine Jackson and Prince Michael Joseph Jackson, II. He then states that he has no other children living or deceased.
Article II is boiler-plate language indicating that he intends to dispose of all of his property through the Will, and that he does not exercise any powers of appointment which he may have at his death. Since he does not exercise any power of appointment, I will spare the reader a technical explanation of how powers of appointment work.
Article III is the most important article with respect to Michael’s assets. In this article, Michael leaves all of his assets to the Trustee(s) of the Michael Jackson Family Trust. He states that the Trust was amended and restated on March 22, 2002. The original date of the Trust is not indicated. All of Michael’s assets passing through probate court are to go to the Trust and be administered under the provisions of the Trust. Michael states that if the Trust is not in existence, the Trustees named in the Trust are to hold the property in trust as if it were in existence under the terms in effect as of the date of this Will. According to reports, the Trust is in existence.
Article IV directs the Executors to pay all of Michael’s taxes and debts.
Article V appoints John Branca, John McClain and Barry Siegel as the co-executors of his Will. Branca is one of Michael’s attorneys and long-time friend, McClain is a music executive and long-time friend, and Siegel is Michael’s former accountant. There have been numerous reports that Branca was fired by Michael three years ago and recently re-hired weeks before his death. There are also reports that McClain is ill; however, it is my understanding that he has a physical disability and is still able to perform the tasks of co-executor. It has been reported that Siegel resigned from the position of executor in 2003. This is not correct, since you cannot resign from a position to which you have not yet been appointed. It is more likely that Siegel signed an agreement stating that he would not serve as co-executor upon Michael’s death. There has been much speculation that Michael’s mother, Katherine Jackson may take Siegel’s place; however, the Will states that no replacement need be named. Katherine was appointed as temporary administrator of the estate until the Will was filed with the probate court. Branca and McClain were temporarily appointed as co-executors by the probate court on July 6, 2009, and they were required to post a $1,000,000 bond. A hearing is scheduled for August 3, 2009 to further deal with this issue and other issues including guardianship of the children. The balance of article IV delineates powers granted by Michael to assist the executors in administering his Estate.
Article VI states that Michael has intentionally omitted to provide for his heirs in his Will. He specifically mentions that he has omitted his former wife, Deborah. These statements are necessary to avoid the long-standing problem of “pretermitted heirs”. A pretermitted heir is one who was not provided for in a Will. The issue here revolves around whether the person was omitted by oversight or intentionally. State law allows certain classes of heirs to receive a share of assets if they were omitted by the decedent. Therefore, it is common to include a provision in a Will indicating that any such omission is intentional. It is also commonplace to include such a provision if the assets are left to a revocable trust such as Michael’s Family Trust. The very first report I heard about Michael’s Will was that he intentionally cut out his father from his Will. While this is true, he intentionally omitted his mother, siblings and children as well. What the report was most likely referring to is the list of beneficiaries of the Michael Jackson Family Trust, which was attached to the Will when it was filed in probate court. The Family Trust will be the subject of a future post.
Article VII is full of procedural provisions dealing with the rights of the executors with respect to out-of-state property.
The provisions of Article VIII have raised most recent the attention of the media. Here Michael nominates his mother, Katherine Jackson, as guardian of the person and estates of any of his minor children. If she should fail or be unwilling to serve, Michael appointed long-time friend Diana Ross as guardian. Guardian of the person and estate means that the guardian would oversee both the individual (health and well-being) as well as the assets of the individual. There is a misconception that when a person names a guardian for his or her children in a Will, that person is automatically appointed. As the world is coming to understand, Michael’s nomination of his mother does not mean she will be appointed guardian. It is the probate court that will appoint the guardian over the children, undoubtedly after one or more legal battles. While the court will give due consideration to Michael’s wishes as to who should be guardian, the decision will be made based upon what is in the best interest of the children. There is the possibility that the children may have separate guardians.
The balance of the Will consists of the execution provisions. This is where Michael signed the Will. The witnesses then signed as well, stating that to the best of their knowledge, Michael was of sound mind and not acting under duress, menace, fraud, misrepresentation or undue influence.
In my next post I will discuss the questions I would ask if I was retained to challenge Michael’s Will.
Joseph W. Kenny is a director and shareholder of Hamblett & Kerrigan, P.A. and practices in the areas of estate planning and taxation. He is also a Certified Public Accountant with certification as a Personal Financial Specialist. You can reach Attorney Kenny by email at [email protected]