Gaslowitz Frankel Law Firm Takes Herman Russell Inheritance Case to Georgia Court of Appeals
Top Atlanta Fiduciary Litigation Firm is appealing a recent decision that denied the prominent businessman's eldest child any inheritance rights
By: Gaslowitz Frankel
"In our opinion, Mr. Russell's executors cannot prove Mr. Russell intended to disinherit Ms. Alston," said Craig Frankel, a founding partner with Gaslowitz Frankel. "The language of his last will and testament and trust do not mention Ms. Alston by name – although they do mention another disinherited descendant by name. And, the documents do not limit the beneficiaries of Mr. Russell's estate to the 'lawful' descendants of Mr. Russell, unlike the title case in Georgia on the subject, in which the decedent, knowing that he had an out-of-wedlock child – who he referred to as his "little bastard" – limited his beneficiaries to his "'awful' descendants."
Georgia law, like the law in most other states, is clear in that, absent an expressed intent to the contrary in a last will and testament or other testamentary document, children born out of wedlock have the same inheritance rights as any other biological child. This rule applies to assets owned by the decedent at the time of death that will pass through probate.
But what if the parent, like Mr. Russell, was wealthy and wanted to avoid paying estate and other transfer taxes? In this scenario, the wealthy parent, like Mr. Russell, often transfers some or all of his assets prior to death through trusts, limited partnership, and other wealth transfer transactions, frequently using heavily discounted values to minimize or eliminate altogether liability for transfer taxes.
Does an omitted biological child still have any inheritance rights or other claim to a fair share of these already-transferred assets? This is a novel issue that neither Georgia nor most other states have addressed.
Gaslowitz Frankel represents Joycelyn Alston, the biological daughter of Herman Russell. Mr. Russell's legacy still ripples through Atlanta, even after his death in 2014. He was a major financier of the Civil Rights movement in the 1960s, and with his connections to politicians and activists like former Ambassador Andrew Young and Dr. Martin Luther King Jr., Mr. Russell helped shape modern day Atlanta.
When Mr. Russell died in 2014, he was survived by his second wife and three children from his first wife. Apparently, unbeknownst to them, Mr. Russell also was survived by Gaslowitz Frankel's client. Ms. Alston was born in 1958. It was not until after Mr. Russell's death, however, that DNA test results proved that Ms. Alston was Mr. Russell's eldest biological child.
Ms. Alston and her siblings are engaged in a lawsuit in the Probate Court of Fulton County, Georgia to determine whether her father intended to disinherit her and leave her nothing under his will.
But Ms. Alston and her siblings also are engaged in another lawsuit filed in the Superior Court of Fulton County, Georgia, in which Ms. Alston asked the court to apply the rules of equity to provide her with a fair share of her father's estate that, primarily for estate tax avoidance purposes, Mr. Russell transferred prior to his death to trusts and limited partnerships for the benefit of his biological children and their descendants.
On January 9, 2019, Fulton County Superior Court Judge Eric Dunaway dismissed Alston's lawsuit, finding that equity would not intervene to provide Ms. Alston with a fair share of her father's estate. An appeal has been filed, and this case is headed to the Georgia Court of Appeals.
"I am disappointed but not surprised, that the judge took the safe way out," said Craig Frankel. "This is a novel issue in Georgia, and Judge Dunaway apparently wants to let the appellate courts decide. It would be a shame if the Georgia courts hold that the biological child of a man who is wealthy has no rights simply because the father had enough money to do estate planning outside of probate."
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