O.J. Simpson is still causing controversy, even after death.
The NFL Hall of Famer, whose trial and ultimate acquittal for the murder of his ex-wife, Nicole Brown Simpson and Ron Goldman in 1994 captivated and divided the nation, died last week at age 76 after a battle with cancer. O.J.’s will was filed in a Nevada court on Friday.
Though O.J. escaped criminal conviction, he was found liable in a civil case and a judgment was entered against him for over $33 million. He famously has not paid the victims any of the ordered amount, so what happens now that he’s dead?
Shortly after O.J.’s death, his appointed executor, long-time attorney Malcolm Lavergne, threw gasoline on the fire by telling the Las Vegas Review-Journal in an interview that “It’s my hope that the Goldmans get zero, nothing. Them specifically. And I will do everything in my capacity as the executor or personal representative to try and ensure that they get nothing.”
Lavergne’s inflammatory statement begs the question: What exactly is in his power as executor to do?
Executors, if they accept the appointment, are fiduciaries. It’s the executor’s job, broadly, to settle an estate. One of the most basic fiduciary duties is the collection of assets and the resolution or payment of the decedent’s debts and monetary obligations. Civil judgments fall under this umbrella.
Each state’s laws clearly outline the order in which an estate’s debts must be paid, with certain debts given precedence regardless of when they were incurred. Under Nevada law (NRS 147.195), the list looks like this:
- Expenses of administration.
- Funeral expenses.
- The expenses of the last illness.
- Family allowance.
- Debts having preference by laws of the United States.
- Money owed to the Department of Health and Human Services as a result of the payment of benefits for Medicaid.
- Wages to the extent of $600, of each employee of the decedent, for work done or personal services rendered within 3 months before the death of the employer. If there is not sufficient money with which to pay all such labor claims in full, the money available must be distributed among the claimants in accordance with the amounts of their respective claims.
- Judgments rendered against the decedent in his or her lifetime, and mortgages in order of their date. The preference given to a mortgage extends only to the proceeds of the property mortgaged. If the proceeds of that property are insufficient to pay the mortgage, the part remaining unsatisfied must be classed with other demands against the estate.
- All other demands against the estate.
This is actually a really interesting list, both longer than what’s laid out in many states and with judgments placed a bit further down in priority. Generally, states will prioritize judgments just below debts to the federal and state governments, with funeral expenses basically always coming first.
So what about Lavergne’s stated intent to prevent the Goldmans from collecting anything?
“He can’t do that,” says Avi Kestenbaum, a partner at Meltzer, Lippe, Goldstein and Breitstone. “It doesn’t matter what O.J. or the executor thinks.”
In fact, Kestenbaum points out that if an executor were to try to sidestep these rules and refuse to pay certain creditors (when funds are available), they would be in violation of their fiduciary duty and, as such, personally liable.
The fiduciary nature of being an executor is why it’s particularly important to not only think long and hard about who should be appointed to the position but also to speak with the chosen individual while the decedent is still alive to explain the gravity of the duties they’d be taking on if they accept.
It seems that someone clued Lavernge into this reality as well, as on April 14, he walked his statements back, telling ABC News, “In hindsight, in response to that statement that ‘it’s my hope they get zero, nothing,’ I think that was pretty harsh. Now that I understand my role as the executor and the personal representative, it’s time to tone down the rhetoric and really get down to what my role is as a personal representative.”
So, unless he fancies putting himself on the hook, there doesn’t appear to be too much Lavergne, at least in his capacity as executor, can do to prevent the Goldmans from collecting.
Whether there’s enough money in O.J.’s estate to actually pay off that judgment or any of the ones preceding it in priority is another question entirely.