Where there’s a Will, there’s a Way
A basic primer on probate
2009-07-01
By Brian Gilmore

The deaths of stars, and artists (and ordinary people too), are often chaotic. This is especially when the deceased did not prepare those left behind for their sudden departure. James Brown’s death on Christmas Day 2007 left behind legal madness. Langston Hughes, the poet, on the other hand, supposedly left his affairs in neat order, and his legacy and possessions have been well cared for and he has been well cared for by history as a result.

So it is now with Michael Jackson, the King of Pop.

No one knows what will become of Michael Jackson’s wealth and artistic legacy.  I will not speculate.  But just like anyone who dies with anything, the law will quickly take over.  As EPMD would say: “Business, Never Personal.” According E! and other reports, a Jackson will has surfaced and provisions were made for Jackson’s mother and three children.

As a lawyer, I can’t over-emphasize the importance of this document, whether you be superstar or janitor. To be extra-basic and clear, a will instructs the world (and the legal system), what you want done you’re your possessions. There might be specific funeral arrangements in a will. There should be instructions for the care of children, houses and other real property, personal property, and perhaps what to do with pets. Some people will be named as beneficiaries, some won’t.

In most states, spouses and children cannot be left out of a will.  If there is no will, this is when things could get dicey - but not necessarily. The court will say the person died “intestate” or without a will. State law usually, in these instances, will determine how an estate is distributed. 

This is why it is always said: if you want to make certain that your nephew gets the $10,000 for college that is in your 401 (k) you had better expressly state that in a will and put those funds in a trust fund prior to your death. If you want to make certain that someone is the personal representative of your affairs after you die, you had better draft a will, execute it, and say that explicitly in the will.

In my early days as a lawyer, I did a few probate cases, and it was not always pretty. I filed a few motions back in those days seeking “stay away” orders on certain relatives to stop them from removing items from the home of the deceased relative. It was always the same story line: “But they told me I could have these items, I was just getting what was mine.” Of course, this may or may not be true and that is precisely why we have probate courts.

Michael Jackson’s case is intriguing to me for one reason and one reason only: the potential earning power of the Sony ATV song catalog he co-owned at his death. While it has been speculated that he owed Sony ATV (the record label) millions of dollars, his half ownership of the catalog is bank for decades. He also has his own song catalog and judging by activity on iTunes in just the first few days following his death, as reported by several media outlets, Jackson is probably getting some bills paid. And at least for those songs that he owned, all day radio airplay in the last few days is netting a tidy sum as well.

I visited the Broadcast Music Inc. (BMI) site yesterday in search of Michael Jackson. BMI is the organization that collects the fees for the songwriters and publishers when their songs are played on the radio. According to BMI’s most recent records,  under the name Michael Joe Jackson, Michael had 181 songs to his credit. Jackson owns all of the big hits from “Thriller” and the post-“Thriller” hits as well. The famous hit, “We are the World”? – Jackson co-owns it with Lionel Ritchie, according to BMI. “Say, Say Say,” his hit with Paul McCartney? Jackson co-owns it with McCartney. The list of songs is impressive.

In Katherine Jackson’s recent court filings to become temporary guardian of his children and personal representative of his estate, the Sony ATV catalog is specifically mentioned. This is smart business by a smart African-American woman who raised a family of successful entertainers and business minded people, especially Jackson. While news outlets reported that Jackson was in danger of losing the catalog last year because of debts, Mother Jackson’s court filing, makes mention of Jackson’s continued ownership of the property as a reason why she needs to be named personal representative right now.

Last year, the catalog was estimated to be worth more than  $1 billion.

Brian Gilmore is a public interest lawyer, poet, writer and columnist with the Progressive Media Project in Washington, D.C.