Deadliest Catch

My daughter tells me the television show Deadliest Catch has advised America that no death certificate is issued if you die at sea. She wanted to know if this is right. The statement is too simple, but I suppose it was made to net in the viewer to the Alaskan fishing show hook, line and sinker. As all or most of those boats homeport from here in Seattle, I took the bait.

Without a death certificate how does the fisherman’s widow collect the life insurance, probate the estate, or remarry? Is she really held up by a faceless bureaucrat’s indecision or some policy that seems to hold the lives of everyone in suspense waiting for a body to be washed up on some shore? What if the man dies like Captain Quint in Jaws? Ick. Certainly Roy Scheider could later testify as to the circumstances of Quint’s passing, and get some proof of death from some court. But unfortunately Roy Scheider has a death certificate himself, so we have a problem.

Take heart. MarkPattersonLaw: The Secret Knowledege of Lawyers is prepared to give an answer for the fishermans  family pacing at the terminal here in Ballard. They can:

A) Wait seven years for the presumption of death to arise, then make the claim, shifting to all persons who wish to say the fisherman is still alive a burden to prove this is true. This would be hard for say, the life insurance company, to do in a world where every credit card transaction is forever remembered by some machine somewhere, not to mention cell phones, on line accounts, and the like. In the modern world then there would tend to be evidence of the “tidings of existence” the law requires the insurance company to show to keep from paying the money. Instead there would be an abrupt end, indicating death. Note our widow will be in court, hence hiring a lawyer after seven long years.

Or she could:

B) Hire a lawyer earlier to seek a determination the fisherman is dead based on evidence we have now. Good luck. Before the seven years is up the presumption is the man is still alive. The life insurance company tries hard to hang on to that presumption notwithstanding some pretty compelling circumstances. Here are some examples:

  • Where a man’s wife has just given birth to a fourth child, he was hopelessly in debt, had spoken of suicide the day before departing on a sea voyage and his bag is found next to a railing of the vessel the insurance company not only went to trial, but also appealed. The company ended up paying.
  • Another man fell into the Columbia river in a place of swift currents and had reportedly never learned to swim. Another trial, another appeal. Company paid.
  • Still another reports the insured was “last seen entering the surf”. Another loss for the insurance industry.

Note these all involve water and therefore are deaths at sea. They also involve a big fight over a long period of time. And they both involve, drum roll please, hiring a lawyer.

In the end there is no death certificate unless the Court orders it but there is a record of death. So, Deadliest Catch, your tag line wasnt really right, but close enough for television.

Perhaps the last option is the fastest.

C) Upload the Deadliest Catch segment where the fisherman was lost to U-Tube, then go on local or national news media complaining about delay. The widow may get her money, her probate property, and be able to start life again much sooner. This option will not necessarily lead to a death certificate.

Ok that’s enough. I gotta go.

It is called a Trust, but should you trust?

How much of my practice is suing trustees who clearly should have never been trusted? A lot.

People often want to have some control over their money after they die, designating particular purposes for which the money is to be used. To do so one needs a “Trust”. The person holding the money is called a “Trustee”. The Trustee pays the money where the Trust directs it is supposed to go; normally to people or charities called “Beneficiaries”  according to what the person making the Trust, called the “Settlor” has designated.

Because a Settlor perceives that nephew or child really understands money and has the character to do the right thing and follow his post mortem instructions in the Trust, they name him as Trustee. The general perception is the bank or some other professional fiduciary will be expensive. While it is true banks and professional fiduciaries do charge fees, often more than the person making the trust would like, it often pales in comparison to the damage the nephew or child can do when it turns out that Trustee isnt really good with money, or just doesnt do the right thing.

Years after the Settlor has died the Beneficiaries show up in my office wondering where the money has gone. I will tell you where it has gone. Often to a place called “The Casino”. Or the money has been invested in the business of the Trustee himself. These things would not happen if the bank or professional fiduciary was handling the money. Rather than the money going where the Settlor designated or perhaps earning something called  “interest” or “dividends” or otherwise increasing in value,  the losses are dramatic, making the fees of a bank look like a bargain.

Money invested in the Trustee’s own business, or even borrowed by the Trustee is called “self dealing”. Money from the trust spent at the casino is called “theft”.

The really remarkable aspect of these events is the Settlor has worked his whole life to build this estate, then potentially throws it away by chosing a Trustee that may or may not do the right thing, act like a prudent investor, or otherwise take on the task of managing the trust.

We see this in guardianship often as well, when the incapacitated person is fleeced even by a court appointed family member. Yet most of the complaints I hear is about the fees of a professional guardian appointed  when no family member appears suitable. It is as if the Settlor of the Trust and his family would rather see the money squandered rather than pay someone unrelated to manage the money with competence.

I am still puzzled by the phenomenon.

OK that’s enough for now, I gotta go.

“If something should happen to me …”

This is the opening line I hear from every estate planning client. “If something should happen to me….” and they go on to describe what they want to see happen with their property, I presume, when they die.

“If” is how this sentence starts. What do you mean if? Don’t you mean “when?”

“Something” means death. The ambiguity is not necessary. I suppose I could ask, “do mean if you should find you have a parking ticket, then all your worldly goods are to be distributed to your family?”  This is after all something that could happen to you.

“Should happen to me” makes it personal. Yes, of course that is why it is called a “will”  as opposed to a command to someone else. If we really could tell people what happens to their property at death I suppose we could call it a “shall”.

Actually this happens in bank lobbies all over America every day. Often people getting on in years will take a trusted adult child or nephew to the bank and “add them to the account” so that when they no longer can pay bills due to age or infirmity their bills get paid rather than executing a durable power of attorney. Now they really don’t want to impact what happens at death when they do this, but the bank employee will often take it upon herself to check the box on the little card attached to the elderly persons account which reads “joint tenants with right of survivorship”, setting in motion a sure bet family fight that will last a generation.

When this happens the will no longer controls that money, instead at the instant of death the trusted child or nephew is suddenly enriched by whatever is in that account. When later asked why she did this the bank employee invariably responds “That is the way we always do it”.

In Washington State we have a statue called the “Superwill” which if mentioned in the will the lawyer drafts there can be a fix of all these prior “shall’s” imposed by bank employees prior to the date of the will. Unfortunately when the elderly person later forgets they have executed a will, and ask the nephew to take them to the bank later in time, this marvelous legislated fix is undone. The elderly person dies, the family discovers what has happened, then what are the lawyers to do? Let the games begin.

OK that’s enough for now. I gotta go.