Its the Lawyer’s Fault

I was fired today. So were the other lawyers working on an estate. I believe the perception is we were making the simple will complex. Mind you, this was day two of the estate for this lawman, and just a few weeks after the probate was opened.

The problem originates with how we count money; yours, mine or ours? In lawyers terms; your separate property, my separate property or community property. Depending on what chair you sit in the perception is different.

Now that is an educated comment. Now instead the estate will be divided on the basis of ignorance, force of personality, and power structures in the departed’s family. Might makes right.

Never you mind that. It is the lawyers fault for pointing out the law.  Shame on us for charging a fee to help them. From the chair they sit in the perception is all lawyers are just there to use up the estate.

Not so. Most of the estates lawyers I practice with or against are second generation lawyers not really in it for a quick buck. That was the case today.

Recently I was asked how long has it been that a non-lawyer could just go to court and explain his side and have the judge make a ruling without the assistance of counsel. “About a thousand years” I said. Sure you can go, but the number of trip wires that have been laid down in front of you are so numerous you will not recognize yourself or your case on the other side.

Here is how this happened. We The People make a rule, but the rule doesn’t seem right in all circumstances, so We The People start erecting exceptions to the rule and before you know it, it is so criss crossed and cratered you do not really know what it means. If you have any doubt try reading the tax code.

You can blame it on the lawyers if you want. Frankly I was a bit surprised Jimmy Buffett didn’t blame it on us rather than a woman in his famous tune Margaritaville.

Some people claim there’s a lawyer to blame,

But I know, its my own damn fault.

Things Happen Along the Way

In 1519 Ferdinand Magellan departed Spain with 25o officers and crew in five ships. He didnt tell the crew, but the objective was to sail around the world. In 1522 only one of the original ships limped into the port of Seville with 18 of the original Europeans on board along with 3 Indonesians they picked up along the way.

What happened? Stuff. They ran into cannibals on the southern tip of South America, the Pacific was a lot wider than they had expected and they ran short of food, and Magellan himself was killed in the Philipines.

What has this got to do with estate planning? Would you leave on a perilous voyage without a will?  Before the author of the account of the First Voyage Around the World left, he executed a will. That seems prudent, but there is no record if the remaining 249 Spaniards, Portuguese and Italians on board did the same.

This is pretty much what I encounter each day in my practice; a patch work of estate planning executed in bank lobbies, stock brokerage offices and sometimes a lawyer’s office. Why is such a mess?

Conditions change. Emotions wax and wane. People have ideas about what the people they leave behind “need” without considering what really happens when application of Dead Man’s Statute prohibitions on hearsay are made, or the impact of an inheritance on a disabled person without a preexisting Special Needs Trust really means.

We are on a perilous voyage. All kinds of decisions made in the wake of your ship may come back to haunt you. Think about it.

My Parents Were Tough

I have not always worked for the dead. Much of this lawman’s life has been spent as a mercenary in the war between the men and the women. The technical term for the conflict is called “family law”. Often the fight is over the kids. The battle lines are drawn over who spends more time with them.

I think a lot about how parents are today and compare them with how I grew up. These days I am getting evidence supplied by the witnesses that one parent or the other is lousy because they don’t show up for all of Johnny’s sports practices or music lessons. Not just the games, or the recital, but the practice.

Contrast with growing up in the 1960’s- my parents handed me my skis with cable bindings and lace ski boots along with a wad of cash and put me on the ski bus in my hometown that was bound for Stevens Pass. I was age 9. Have a nice day. By the grace of God I found my ski school, learned to ski, and found my way back to the bus. Others were not so fortunate.

I recall one scene vividly. One of my classmates was unable to handle the same sort of situation and was left behind on the slope by the rest of the class, his skis crossed and crying uncontrollably. “You don’t want to end up like Rudy over there, do you?” my instructor asked me. Nope, time to rise to the occasion with all my 9 years of experience to fall back on.

At the end of the day my parents were waiting at the bus station to retrieve me. Almost everyone else on the bus was in the same situation. Contrast with today where the parents are expected apparently, to leave work to attend every extracurricular even in a sluggish economy or be branded an uncaring parent in court or elsewhere.

Or how about turning out for football? This was their idea on how to toughen up sensitive me. Deposited in the Projects with a helmet and shoulder pads ( in the 60’s the parents actually had to pay for this, it wasnt a village that raised a child ) I was issued a jersey and football pants by the Boys Club there; there to learn the ways of playing with kids from the other side of the tracks.

I was beat up every day. After a while I was accepted and the beatings ceased, probably because started hitting back. I have often said it was that experience that made a trial attorney of me. My father is a lawyer so I learned a lot from him as well. My mother is not a lawyer, but lets give credit where credit is due: she taught me how to cross-examine.

These are not the parenting choices of today. The ethic is to hover, as in a helicopter, the child always hearing the comforting sound of the “thump thump” of either the rotor blades or perhaps the sound is their parents breathless hearts in constant care of them. I am not sure which is right, the millennium parent or the parents of the baby boomers. I do know that conflict is a constant and knowing how to deal with it independently, particularly in this job, is a necessary skill.

My parents were tough. And I am a better man for it.

After Death Facebook Lives On

Todd Pack is to be thanked for this issue, his blog post this past week is entitled “What Happens to Our Facebook Account After We Die?”

The comments following the post describe a litany of unintended events both by the team at Facebook as well as the individual subscriber, who is now across the Great Divide and cannot now edit the profile. Like everything else that a dead person has an interest in here on earth, they fall into the control of your personal representative as soon as some probate court admits your will to probate.

I guess I will call the dead man’s interest in his Facebook page a “license” but I am sure the people who practice in the field of “intellectual property” ( yes that is what it is called ) might have a more elegant name for what Mark Zuckerberg hath begotten. Instead Facebook is there for us all to use, as long as we follow the rules. Given that Mr. Zuckerberg is only 27 years old today, I doubt he has given much thought to death and what the rules will be then.

One woman describes how her mother passed in 2007, she developed a profile in 2008 on Facebook, and then started getting requests she “friend” her dead mother.

For me the “autocomplete” feature of the software tears the bandage off each time I am writing to my surviving friends about the loss of our close friend Doug, then the sentence automatically spells out his name and a picture of his once happy family. The ostensible purpose is to ask me to include him in the discussion. Yes Mr. Zuckerberg, I would love to have another conversation with Doug, but I have a few years left thank you.

Meanwhile the other social networks are not any better. Linkedin sent me a solicitation to connect with Doug recently as well. I am thinking of Mary Todd Lincoln and seances held to have contact with her lost son in the White House might have had better luck.

So what to do? One commentator to Mr. Pack’s posts suggests directing the personal representative of the will  go about the process of winding these things up. This is a good idea, but I suspect the Letters Testamentary issued by our state court may not be recognized in Massachusetts, or wherever Facebook seems to be headquartered. The company, unlike it’s product, is not public.

Lets try it. At worse this latest generation of billionaires will ignore us and thoughtlessly interrupt our efforts at closure.

Empty Grandmas Accounts Before She Dies to Avoid Probate?

I wrote this post because I saw this question as a top search on my dashboard.

The answer is no. There are several problems with this approach.

1) Crime. That is what this is, Crime. Go to Jail, Do not pass GO, do not collect any $200. You will be characterized as “financial exploiter” at least if you do this in the state named after the first President, and that means you fall under the “slayer statute” and as we all know, slayers do not inherit. Or at least I think we all know this.

2) Breach of Fiduciary duty. There I go again with all that legal stuff. The trouble is that “legal stuff” can get you in trouble, if not in jail, at least sued. Lets say grandma put you on the account “just in case”. It is still not your money. While the bank is authorized to allow you to remove it, the disposition of those funds really have to be for grandma’s benefit and not those who are left here on earth when she passes. She put you on the account because she trusted you, and when we start hearing the word “trust” all kinds of duties attach.

3) Joint Tennant with Right of Survivorship. Lets say grandma opened this account with you and personally, not the bank employee, checked the box that says this or shortened to JTWROS. That is a will substitute that means when she dies the money is yours without probate. Note the timing. It will not be a defense to say that you will inherit this money some day anyway through this non-probate transfer. What if she needs the money before then?

I suspect there are more reasons not to do this but the post is getting too long. You may have good reasons to avoid probate, but this approach is too dangerous. In layman’s terms, don’t take things that don’t belong to you. You don’t have to go to law school to know this. I think we all learned this in kindergarten.

“Do it yourself will kit” – the driver is asleep at the wheel

Why should anyone hire a lawyer to draft a will? Because drafting it yourself is like driving on the freeway on your first day behind the wheel.

That man contemplating death and writing his own will drives outside of the lines weaving from centerline to shoulder, throwing gravel and screetching tires after his funeral, when reasonable minds differ on what he intended. And, as he is out of the blue and into the black, he cant come back, the only mind that matters is that of the judge. Along for the ride in this inexperienced drivers vehicle is the whole family.

Do you drive a car on the freeway before getting accustomed to car in the neighborhood? How many will writers have litigation experience and know how things really work in court? I mean real court, not the courtrooms on television.

There are perfectly straightforward software packages out on the internet that seem logical and can convey the intent of the will writer well. In that case the will writer is someone in a distant state trying to make a buck out of volume sales without a care really about the end user. Sometimes these things work out.

Sometimes they dont. What if the actual end user of the software wants something other than is in one of these cans? What if there is any complications at all, like a step child, or you have specific ideas about a trust for children or grandchildren that may or may not work in your jurisdiction? What if the national canned will draft is just wrong about the laws in your jurisdiction? The laws of devise and descent are notoriously local.

Hire someone to at least look at what you have written for your last act on earth. The local lawyer will at least know where the speed traps are.