“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.

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