It’s Still Different …

Here’s an update to our post last week on the the legal battle between the National Basketball Association and Donald Sterling, the owner of the Los Angeles Clippers.  We posted on Wednesday.  By Friday night, Mr. Sterling’s wife, Shelly, had announced a sale of the team to Microsoft co-founder Steve Ballmer for $2 billion (yes, that’s billion with a “B”), and the NBA Commissioner, had approved the deal.  Meanwhile, Mr. Sterling had sued the NBA and its Commissioner for $1 billion.  The only problem was that the deal Mrs. Sterling made included indemnification of the NBA and the Commissioner for any damages recovered by Mr. Sterling.  Therefore, any money he recovered would go in one pocket and out the other.

Because of the quickly-arranged sale, the NBA Board of Governors cancelled the scheduled June 3rd hearing on Mr. Sterling’s expulsion from the league.  Instead, it planned to schedule a vote to approve the sale to Mr. Ballmer.

And within a week of the original post, Mr. Sterling’s lawyer announced that Mr. Sterling had settled with his wife, would withdraw his lawsuit, and would agree to the sale.

So What’s the Estate Planning Connection?

Reports are that the Clippers are owned by a Sterling “family trust.” This is probably what we estate planning attorneys refer to as a “revocable management trust.”  What is commonly known as a “living trust” by the public at large.  These are estate planning vehicles designed to avoid “probate” in states where judicial proceedings to settle a person’s estate can be cumbersome, expensive, lengthy, or any combination of the same.

Family reports indicated that a medical examination of Mr. Sterling had concluded he may be afflicted with Alzheimer’s disease, and that he may have had that disease for three to five years. The significance?  Mr. Sterling was likely a sole or co-trustee of the family trust while he had capacity.  If he was determined to be incapacitated in accordance with whatever definition was contained in the trust agreement – not necessarily as stringent as the requirements for a court to declare someone incapacitated – then he could no longer act as trustee.  This medical examination may have led to Mrs. Sterling becoming the sole trustee of the family trust, giving her authority to sell the Clippers, and indemnify the NBA, over any objections of Mr. Sterling.

You Gain Some; You Lose Some.

Our original post contained a calculation of the capital gains tax that would be owed by the Sterlings upon a sale of the team, and the net after-tax proceeds. That was based on an assumed sale of the team for $1.5 billion.  The announced sale is greater than that by an additional third.  So based on the reported basis of $12 million, and a combined state and federal capital gains rate of 33%, the Sterlings will owe $656,040,000 in capital gains tax.  But don’t feel sorry for them.  They’ll still walk away with almost $1.344 billion.  The previous highest sales price for an NBA team was the sale of the Milwaukee Bucks for $550 million.  That’s before the owner, former U.S. senator Herb Kohl paid his taxes on the sale.  The Sterlings’ after-tax proceeds are almost two and a half times Sen. Kohl’s pre-tax proceeds!

So Far I’m Right.

At the end of my original post, I predicted that Mr. Sterling would eventually agree to sell the Clippers in exchange for a reduction of his $2.5 million fine to $1 million. So far I’m right on the sale portion.  No conclusion yet on the fine reduction.

And Now For Something Completely Different …

Like many of you, I’ve been intrigued by the legal battle between the National Basketball Association and Donald Sterling, the long-time owner of the Los Angeles Clippers. By way of background, Mr. Sterling’s girlfriend (presumably “former” by now) secretly recorded a conversation with him in which he made disparaging remarks about African-Americans. After the recording was released and its authenticity verified, Adam Silver, the NBA’s Commissioner, rather swiftly announced that Mr. Sterling would be fined $2.5 million and indefinitely suspended from any activities related to the NBA. Further, Mr. Silver was going to ask the other NBA owners to force Mr. Sterling to sell the Clippers. Can he do that? Probably, but not definitely, and that’s where lawsuits come from.

The NBA Constitution and By-Laws

Before the Sterling situation arose, the rules governing the NBA’s owners and their legal relationships with each other were confidential. But, perhaps to show that it had the power to force the sale of Mr. Sterling’s franchise, the NBA decided to make its Constitution and Bylaws public. You can download your very own copy here.

Article 35A

Here’s what I’ve determined. Article 35 deals with misconduct committed by players. Presumably, their misconduct is dealt with separately because it is subject to collective bargaining. Article 35A deals with misconduct of persons other than players, including a “Member” (the person or entity that is a member of the NBA, e.g., the Clippers or the legal entity that operates the Clippers) and an “Owner” (including the Member and each individual or entity that, directly or indirectly, owns an interest in the Member). This is the portion of the NBA Constitution that governs misconduct by Mr. Sterling. Paragraph (c) provides as follows (emphasis added):

     (c) Any person who gives, makes, issues, authorizes or endorses any statement having, or designed to have, an effect prejudicial or detrimental to the best interests of basketball or of the Association or of a Member or its Team, shall be liable to a fine not exceeding $1,000,000 to be imposed by the Commissioner. The Member whose Owner, Officer, Manager, Coach or other employee has been so fined shall pay the amount of the fine should such person fail to do so within ten (10) days of its imposition.

I think it would be fairly easy to make a case that Mr. Sterling’s disparaging remarks could constitute statements having an effect prejudicial or detrimental to the best interests of the NBA and the Clippers themselves. So chalk up $1 million of Mr. Sterling’s $2.5 million fine.

Next, Paragraph (d) provides as follows (emphasis again added):

     (d) The Commissioner shall have the power to suspend for a definite or indefinite period, or to impose a fine not exceeding $1,000,000, or inflict both such suspension and fine upon any person who, in his opinion, shall have been guilty of conduct prejudicial or detrimental to the Association.

While Paragraph (c) deals with statements, Paragraph (d) deals with conduct. The Commissioner may have determined (and not that this provision is based on the Commissioner’s opinion) that merely making the disparaging remarks to his girlfriend also constituted “conduct” by Mr. Sterling that was prejudicial or detrimental to the NBA. So chalk up another $1 million of Mr. Sterling’s $2.5 million fine, plus his indefinite suspension.

But those two provisions only account for $2 million of Mr. Sterling’s $2.5 million fine. Other provisions deal with “rigging” the outcome of games, interfering with contractual relationships, involvement with betting, disclosure of confidential information, criminal convictions, and drug involvement. None of those appear to apply in the case of Mr. Sterling. I haven’t been able to find another provision that would justify the additional $500,000 fine. So we’ll accept it as a mystery for now (but see below for a possible explanation). The NBA also concluded that Mr. Sterling had destroyed relevant evidence, or had provided false or misleading evidence. Mr. Sterling subsequently announced his intention to fight these penalties, and refused to pay the fine.

Article 13

Article 13 allows the membership of a member or the interest of any owner to be terminated by a vote of three-fourths of the Board of Governors (each team or member designates an individual owner or officer to serve as its representative on the Board of Governors). But they can’t do that without a reason. The article lists ten different reasons allowing termination. I will list three cited by the NBA in the charges it delivered to Mr. Sterling on May 19th. An interest can be terminated if the member or owner does any of the following:

     (a) Willfully violate[s] any of the provisions of the Constitution and By-Laws, resolutions, or agreements of the Association.

 * * *

     (c) Fail to pay any dues or other indebtedness owing to the Association within thirty (30) days after Written Notice from the Commissioner of default in such payment.

     (d) Fail[s] or refuse[s] to fulfill its contractual obligations to the Association, its Members, Players, or any other third party in such a way as to affect the Association or its Members adversely.

The NBA’s Charges

The NBA first contended that Mr. Sterling’s acts violated Article 13(d) because they constituted:

  • the taking or supporting of a position or action which may have a material adverse impact on the league or its teams, in violation of an agreement made by LAC, Mr. Sterling, and Mrs. Sterling in favor of the NBA and its members;
  • a failure to use best efforts to see to it that the sport of professional basketball is conducted according to the highest moral and ethical standards, in violation of the league’s joint venture agreement among LAC and all other NBA members; and
  • a violation of the contractual duty of loyalty to support the league in the attainment of its proper purposes, which include among other things the league’s commitment to diversity and inclusion.

In addition, these acts breached the Clippers’ duty of loyalty under New York law to the other members because the acts “were injurious, harmful, and disruptive to the NBA”

Next, the NBA charged that the destruction of evidence and false and misleading statements violated Article 13(a).

And finally, when Mr. Sterling announced that he would not pay the $2.5 million fine, he violated Article 13(c).

Article 14

Article 14 outlines the procedures for termination. First, a member or the Commissioner may charge in writing that a member or owner has violated one of the provisions of Article 13. In that case, the Commissioner is required to deliver a copy of the charges to the accused member or owner within three business days. As noted above, that took place on May 19th. Once the charges are delivered, the member or owner has five days to file a written response with the Commissioner.

Mr. Sterling’s Response

Mr. Sterling’s attorneys delivered his 32-page response on May 22nd. He claimed that the remarks were made during a “lovers’ quarrel,” and were illegally recorded. Basing charges on this recording violated Mr. Sterling’s constitutional rights under California law. His attorneys take the position that the violation of California law related to the surreptitious recording makes them unusable for any purpose, including the termination proceeding. However, while I suspect that the recording might be inadmissible in any judicial or state administrative proceeding, those rules do not usually extend to use by private parties in their private dealings.

The second ground for Mr. Sterling’s defense was based on the contention that none of Mr. Sterling’s actions violated any of the NBA’s rules, and therefore did not constitute a violation of Article 13(d). But further, since none of Mr. Sterling’s actions were “willful,” they couldn’t constitute a violation of Article 13(a).

And as for the Article 13(c) violation (failure to pay his fine), it was not yet “ripe” since thirty days had not yet passed since he received notice of the fine on May 14th. His response also claimed that the maximum fine was only $1 million under Article 35A(c).

Mr. Sterling’s response reveals that the $2.5 million fine was imposed under Article 24 of the NBA’s Constitution and By-Laws. So let’s take a look.

Article 24

Article 24 outlines the authority and duties of the Commissioner. Paragraph (l) provides:

   (l) The Commissioner shall, wherever there is a rule for which no penalty is specifically fixed for violation thereof, have the authority to fix such penalty as in the Commissioner’s judgment shall be in the best interests of the Association. Where a situation arises which is not covered in the Constitution and By-Laws, the Commissioner shall have the authority to make such decision, including the imposition of a penalty, as in his judgment shall be in the best interests of the Association. The penalty that may be assessed under the preceding two sentences may include, without limitation, a fine, suspension, and/or the forfeiture or assignment of draft choices. No monetary penalty fixed under this provision shall exceed $2,500,000.

So that’s where the $2.5 million fine came from! But Mr. Sterling’s response points out that since the penalties were imposed based on the recordings, they would constitute a violation of Article 35A(c). In that case, the catch-all penalty provision in Article 24(l) would not be applicable, since there was a rule that fixed the penalty.

Back to the additional defenses. Mr. Sterling claimed that his punishment was “arbitrary and capricious and … grossly disproportionate to past [NBA] punishments.” Further, the termination procedures in the NBA’s Constitution and By-Laws were unfair – both on their face and as applied to this situation. The hearing could not be fair since many owners had already announce their agreement with the Commissioner.

And finally, a forced sale would result in an “egregious forfeiture” because the family would be forced to pay an otherwise avoidable capital gains tax.

Taxes – Now You’re Talking!

As the title of this post implies, this post is completely different from the normal topics I address. But here’s the reason the Sterling’s are complaining. First, notice this complaint is by the “Sterlings,” not Mr. Sterling himself. There’s a reason for that. Mr. Sterling purchased the Clippers three decades ago – reportedly for about $12 million. That’s 12 followed by six zeroes. But recent estimates of a sales price range from just under $1 billion to almost $2.5 billion. As in nine zeroes. Let’s pick somewhere in the middle. Say Mr. Sterling sells the team for $1.5 billion. His “basis” for income tax purposes is his $12 million purchase price. Therefore, his gain is $1.488 billion. The federal capital gains rate is 20%. California apparently imposes an additional 13% tax. So Mr. Sterling would have to pay a combined 33% capital gains tax on his $1.488 billion gain, or $491,040,000. Leaving him with just over $1 billion in after-tax proceeds from the sale of his team for $1.5 billion.

But Section 1014 of the Internal Revenue Code contains one of the few tax breaks from dying. At someone’s death, the property taxable in that person’s estate for estate tax purposes receives, with limited exception, a new basis equal to its value on the date of the person’s death. Further, Mr. Sterling lives in a community property state. Section 1014 goes on to provide that if the property is community, not only the decedent’s half, but also the surviving spouse’s half of the property receives that new basis. The Clippers are reportedly community property of Mr. and Mrs. Sterling. Therefore, if they held on to the team until the first of them died, the basis in the entire team would explode from $12 million to whatever its value was at that spouse’s death. It could then be sold for that value at no capital gains tax cost.

And Speaking of Community Property …

Reports are that Mrs. Sterling contends that she has done nothing wrong, and that she shouldn’t (and can’t) be forced to sell her half of the team. Is this true? Probably not. I’m not an expert on California’s variety of community property law, but under Texas law, the Clippers, if purchased in Mr. Sterling’s name, would be his “sole management community property.” This means that while Mrs. Sterling owned half of the team from an economic standpoint, Mr. Sterling had the right to “manage” both his and her halves of the team. And by agreeing to the NBA’s Constitution and By-Laws, and apparently by being the person “approved” as the owner, he bound both his and her halves to the rules of the NBA.

But Let’s Go Back to Article 14

Now that Mr. Sterling has filed his response, the Commissioner has to call a special meeting of the Board of Governors no later than ten days after the filing of the response. That hearing is currently scheduled to begin on June 3rd. Note that it was critical that Mr. Sterling file some sort of response on time. Article 14(c) provides that willful failure to respond within the five day period, or to appear at the hearing, would be deemed an admission of the “total validity of the charges as presented.” While Mr. Sterling has the right to be represented by his lawyers at the hearing, Article 14(e) also provides that strict rules of evidence “shall not apply, and all relevant and material evidence … may be received and considered.” Remember Mr. Sterling’s argument that the California constitution prohibited the use of the recording as evidence? He was forced to make a “constitutional” argument by this language expressly allowing use of evidence that might otherwise be inadmissible in a court of law.

Article 14A

If the Board of Governors votes to terminate Mr. Sterling’s membership, Article 14A places the management of the team under control of the Commissioner. Further, it appears to give the Commissioner, not Mr. Sterling, the power to sell the team on behalf of Mr. Sterling.


More recent reports indicate that while Mr. Sterling is still publicly fighting the penalties, he has turned over the possible sale of the team to his wife, and she is actively seeking buyers. My prediction, based on absolutely nothing at all other than a guess, is that Mr. Sterling’s response is designed mainly to provide him negotiating leverage. He probably does not want his family to lose control of the sale. Therefore, I suspect that he will eventually reach a settlement, reducing his fine to only $1 million, and allowing him and his family, rather than the Commissioner, to control the sale of the team.

If I’m right, you heard it here first. If not, I probably don’t know what I’m talking about anyway. After all, I write wills for a living!

Did We Inadvertently Repeal the Applicability Provisions of Some Probate Code Sections?

In early January, yours truly began receiving numerous questions from practicing attorneys about different provisions of the Estates Code.  This puzzled your author since most of the questions were about provisions that had been enacted in 2009 or 2011.  Until the obvious came to him: none of these attorneys had ever bothered to look at the Estates Code until it went into effect January 1, 2014.  Quite understandable – had I been in their positions, I might not have looked at the Estates Code until then either.

An Example – Probate Code Section 84

One of those e-mails concerned the 2011 change to Probate Code Section 84 which recognized the self-proving nature of self-proving affidavits executed in a non-Texas form but that complied with the self-proving affidavit laws of the state of the testator’s domicile at the time of execution.  This change was made by Section 1.17 of REPTL’s 2011 substantive Decedents’ Estates bill – S.B. 1198.  Section 1.43(c) of S.B. 1198 provided that [t]he changes in law made by Sections …84, … Texas Probate Code, as amended by this article, … apply only to the estate of a decedent who dies on or after the effective date of this Act.”  Section 3.02 of S.B. 1198 provided that “[e]xcept as otherwise provided by this Act, this Act takes effect September 1, 2011.”  So the changes in law made by Section 84 only applied to the estates of decedents dying on or after September 1st.

S.B. 1198 was also “double-billed” in anticipation of the January 1, 2014, replacement of the Probate Code with the Estates Code.  Article 1 of the bill made a number of changes to the Probate Code.  Then, Article 2 made the same changes to the corresponding provisions of the Estates Code.  In the case of this particular change, Section 2.32 of the bill made the same changes to Estates Code Section 256.152 that were made to Probate Code Section 84 by Section 1.17 of S.B. 1198.  Probate Code Section 84 was repealed by Section 2.54(b)(1) of the bill.  And Section 2.55 of the bill made all of the changes contained in Article 2 (including both the amendment of Estates Code Section 256.152 and the repeal of Probate Code Section 84) effective January 1, 2014.  But Article 2 contained no language limiting the application of the change to Estates Code Section 256.152 to decedents dying on or after September 1, 2011 (or any other date, for that matter).

It appears to this author that the September 1, 2011 applicability limitation only applied to a statute that is no longer the law (Probate Code Section 84), and the current law (Estates Code Section 256.152) should be interpreted to allow the foreign will of a 2010 decedent to be considered self-proved.

This shouldn’t offend anyone with a strong sense that the Estates Code should be an exact reflection of the Probate Code as it existed on December 31, 2013 – without any substantive changes.  That restriction only applied to bills prepared by Legislative Council as a part of the ongoing statutory revision program that began over five decades ago.  Estates Code Section 256.152 was originally enacted in 2009 by H.B. 2502 as part of the nonsubstantive decedents’ estates provisions prepared by Legislative Council.  That version was identical to the pertinent portion of Probate Code Section 84 in all respects.  However, the 2011 amendment to both was made by a REPTL bill that was never intended to be nonsubstantive.

Categories of Changes.

This oddity got your author wondering about all of the other changes that were being made to the Probate Code while the Estates Code was undergoing its enactment process, and how many might be subject to a similar applicable date analysis.  In reviewing amendments to the Probate Code enacted in 2009, 2011, and 2013, the changes appear to fall into the following categories:

  1. Bills that merely stated that the changes made by them take effect on a particular date, without any further explanation regarding their applicability to situations taking place before or after that effective date.  To the extent that these bills created any confusion regarding their applicability, that confusion did not arise as a result of the January 1, 2014, replacement of a Probate Code provision with an Estates Code provision.  Therefore, I have made no attempt to identify these changes.
  2. Bills that only made changes to Estates Code provisions.  Most of the 2013 probate and guardianship-related changes fall into this category.  Since no change was ever made to the corresponding Probate Code provision before it was repealed on January 1, 2014, there wasn’t any opportunity to have different effective dates for the Estates Code provisions.  Similarly, I have made no attempt to identify these changes.
  3. Bills that contained the applicability provision in the language of the statute itself, in which case a nonsubstantive revision to the corresponding Estates Code provision would contain the same applicability provision.
  4. Bills that made changes to Estates Code provisions that corresponded with previous changes to Probate Code provisions and that carried forward the provisions relating to the applicability of the Probate Code changes.
  5. Bills that transferred Probate Code provisions to the Estates Code and redesignated those transferred provisions as Estates Code provisions (as opposed to the more common method of enacting an Estates Code provision effective the same date as the corresponding Probate Code provision was repealed).
  6. Bills that enacted Estates Code provisions that reflected existing Probate Code provisions (that hadn’t been amended recently) but without carrying forward any provisions regarding the applicability of prior changes to the Probate Code provisions.
  7. And finally, bills that made changes to Probate Code provisions with specific applicability language that also made changes to corresponding Estates Code provisions without specific applicability language (e.g., the changes to Probate Code Section 84 and Estates Code Section 256.152 made by S.B. 1198 in 2011).

For further discussion of the Probate Code provisions I’ve reviewed and which category I believe they fit in, take a look at The Story of the Texas Estates Code which you can find on my law firm website.  This discussion is found in Part 21 (as of March 14th).

Estates Code Section 352.003 is Alive and Well!

On January 9th, it came to our (REPTL’s) attention that Estates Code Section 352.003 may have been inadvertently repealed.  It hasn’t been, but because there are sources out there that indicate otherwise, we thought it important to get this message out.

The short version – you may have a publication indicating that it was repealed. If so, that publication is incorrect, and you should make a note of that fact. You can stop reading here if you don’t care to know why. If you do care, then sit back. This will take a while.

Section 352.003 was enacted in 2009 as part of the Legislative Council nonsubstantive Estates Code bill enacting decedents’ estates provisions (effective January 1, 2014). It incorporates the portion of Probate Code Section 241 that allows a court to award additional compensation to a personal representative if the representative manages a farm, ranch, factory or other business, or if the compensation produced by the 5-plus-5 formula is unreasonably low.

In 2011, REPTL proposed changing a representative’s standard compensation from the 5-plus-5 formula to “reasonable compensation.” In the bill REPTL introduced (SB 1198), these changes were implemented through amendments to Sections 352.001 and 352.002, found in Section 2.36 on p. 81 of a 124-page bill. In addition, Section 352.003 was repealed because it would no longer be needed if the standard compensation was “reasonable.” This repeal was included at the end of the bill, where repealers always are found. In the introduced version, it was located in Section 2.51(a) on p. 123 of the 124-page bill. You can see all of this yourself by downloading the PDF copy of the Introduced version here.

But that’s not the final version that passed. Opposition to the compensation change led REPTL to drop the proposed changes to Sections 352.001 and 352.002. Therefore, we no longer wanted to repeal Section 352.003. In Section 2.54(a) of the enrolled version (i.e., the one that passed) — the successor to Section 2.51(a) in the introduced version — two sections of the Estates Code, neither of which are Section 352.003, are repealed. (This is on p. 138 of a 140-page bill.) If you’re interested, you can download the enrolled version from the same page linked to above.

Here’s where the problem arises: If you download chapter 1338 of the 2011 session laws, Section 2.54(a) INCORRECTLY states that Section 352.003 is one of the two sections that are repealed. This would’ve been correct had the introduced version passed, but it wasn’t in the version that actually passed.

Thomson Reuters (i.e., West) publishes the session laws. This accounts for them carrying forward this mistake on page 1400 of the 2013 edition of Johanson’s Texas Probate Code. I’ve been told that their other printed versions of the Estates Code leave it “blank,” rather than repealed, because it was repealed in 2011 before its effective date of 2014.  This has already been fixed in the 2014 edition of Johanson’s Texas Estate Code.

The 2013-2014 edition of O’Connor’s Estates Code plus (Jones-McClure) DOES NOT contain this mistake. I’m also told that Lexis has it correct.

West has since noted the mistake and corrected the section on Westlaw. We are told they will be sending out corrections to purchasers of the hard copy versions of the Estates Code.

In the meantime, if your copy of the Estates Code is incorrect, I’ve posted a page here with the correct text of Section 352.003 that you can print, cut out, and tape in your copy where it says the section is repealed.

The Story of the Texas Estates Code

On January 1, 2014, Texas’ 58-year-old Probate Code was replaced by the new Estates Code.  These changes were enacted into law in 2009, 2011, and 2013, but the story behind the Texas Estates Code goes back more than half a century.

Download the article at to learn more about:

  • Texas’ 50-year-old continuing statutory revision program;
  • A bit of the backstory behind our former Probate Code;
  • The reasons why it was necessary to replace the Probate Code with the Estates Code;
  • The process of drafting the Estates Code;
  • The organization of the Estates Code;
  • Construction issues related to its replacement of the Probate Code;
  • Some of the substantive changes that were included in connection with the enactment of the Estates Code; and
  • A few [free] resources you may find helpful.

2013 Texas “Probate and Trust” Legislative Update

For our first substantive blog post, we’re going to remind you of the legislative updates that are available for download.  The most recent one covers Texas legislative changes in 2013 relating to probate (i.e., decedents’ estates), guardianships, trusts, powers of attorney, and several other areas of interest to estate and probate practitioners.  You can find that update at:

You can also go to the resources page of our firm’s website ( and scroll down to the section titled “For Professional Advisors.” There you’ll find not only the 2013 legislative update, but also similar updates for the 2009 and 2011 session.  Or, click on the following links:

Something Borrowed; Something Blue …

We’ve decided to move our blog to (specifically,  We will periodically cover a variety of topics related in some way to estate planning and probate issues.  These topics include wills, trusts, guardianships, disability documents (such as financial and medical powers of attorneys and advance directives, or “living wills”), transfer taxes (such as the dreaded “death tax”), business succession planning, and more.

You can “Follow” us by clicking on the link down in the lower right corner of the screen. By following us, you’ll receive an email notification whenever there’s a new post.

More to come later …