Dead Stick Control

In 2001 the legislature of the Evergreen State elected to extend the Rule against Perpetuities to 150 years. It had been 21. What that meant that anyone you wanted to have inherit your property had to be born within 21 years of your death. Now you can extend your dead hand well into the future. But should you?

Real Property, as we have come to understand, does not always go up in value. Neither do stocks, although the people who sell and trade them would argue with me. Do you really want to lock the trustee into holding stock for 150 years?

Will what you write out today make any sense when it is time for the trust to pay out? 150 years is a long time. Lots can change.  Stock in buggy whip company for example in 1861 would be worthless today. With 150 years to stretch out property, this means a soldier in the American Civil War dying at the First Battle of Bull Run, in July 21st 1861 could literally leave his property to a baby born on or before July 21st 2011.

What is really volatile however are social values. Consider the “Parentage” statute was until a few years ago called the “Paternity” statute, because until then maternity was a matter of fact whereas paternity was a matter of opinion. It is no longer so.  And for generations the statute came under the title of “Bastardy”.  We don’t use that term any longer, and instead society has apparently agreed to accept and pay for the results of all this free love. Can you imagine if our Civil War soldier tried to control the behavior of his descendants 150 years later?

What if that trust placed prohibitions on consumption of alcohol or tobacco as a condition of that child receiving his money? Perhaps the soldier could have prohibited the baby from owning slaves. Perhaps he could have conditioned the trust payments on choice of mate for his heir being a certain religion. Or maybe he just wanted to make a point about values that seem to be important to just about anyone living a life in America.

It is said it is still the case in the State of Louisiana when a young man declares he has chosen a bride there are three questions; Whose her Daddy? Is she Catholic? and Can she make a rue? From the perspective of a father these are good questions. They are also good questions from the perspective of a great-great-great grandfather.

Suffer the Children

A lawyer I know was completely exercised the other day about the re-write to Washington’s Parentage Statute. It used to be called the Paternity Statute until it was discovered that men are really no longer necessary to the production of and parenting of children. That change was made about the time the law reacted to artificial insemination and enacted rules that if followed can mean motherhood is redefined as well as fatherhood. Indeed, the new statute does away with archaic terms like “mother” and “father” altogether in favor of the gender neutral “parent”, as if sex had nothing to do with the production of children.

Now the law is reacting to this brave new non-traditional family made available by science. We have previously adopted a concept of Domestic Partnership mainly for same-sex partners, and codified it into law. The law touches now on parentage.  Still titled “Presumption of Paternity in the Context of Marriage” the new statute from this past July goes through the normal presumptions about who is a parent and who is not;  for example a child born during a marriage is presumed to be the child of the married couple, and now that is the same as a couple who are registered Domestic Partners who produce a child.

In section (2) however the statute says this: A person is presumed to be the parent of a child if, for the first two years of
the child’s life, the person resided in the same household with the child and openly held out the child as his or her own.

While the title of the statute implies this is only about marriage, it is now also about Domestic Partnership in section (1). So forgive me for pointing this out, but section 2 doesn’t seem to limit this to domestic partnership or marriage. This means, for example, that five same-sex partners residing in a house together for the first two years of a child’s life holding that child out as their own are presumed parents.

Perhaps this Brave New World has an answer for whose responsibility it is to support this child, whether the child has inheritance rights when one of the five passes, no matter how distant that communal arrangement may have been in time when the partners start to die, or more importantly how to answer this child’s questions when he comes home from school with forms to fill out and with lots of questions about why his family is so different from everyone else at school.

Perhaps those who embarked on this scientific and social experiment will have a nice mug of cocoa for the child and explain to him that it was their hedonistic sense of what they were due in life, regardless of what genes dictated sexual preference to them, that has led to this complexity. I am sure that will be a comfort to him.

Apparently there is no such thing as a “mad scientist” any longer, but may I suggest that label may apply to our legislature, if I am reading this right.

Lawyers Health; Unstated Issues in an Iconic Profession

When you think “lawyer” what do you think? Big car? Fancy Suit? Money? Ask yourself where did you get such ideas? I suggest the source is media, and not first hand experience.

Now let’s think about how that man achieved the title. First there is a great deal of investment to just achieve the license. Four years of college, three years of law school, then a bar exam. One may have thought in terms of art and beauty before law school, but afterward one thinks solely of crime and civil remedies. The study doesn’t really stop there because any lawyer with anything to sell makes the study of law part of the pattern of his life.

Next lets consider the practice. People come in, often with complex fact patterns and are either being sued, suing or worried about both. The conflict most of the time involves another individual who has gone to his own lawyer with his complex version of the facts. Each side “lawyer’s up” to use a vernacular term I heard this week, and the contest is on.

For most of my career I have wondered about the long-term impacts on the individual who takes on this job. What does it mean to the psyche to daily handle human conflict and misery day in and day out? We joined the profession to try to help people, at least most of us have. The steady stream of people needing help often without adequate funding adds to the stress. When the lawyer has to pay the staff at the end of the month it ultimately is the lawyer who pays for the legal needs of those of limited means who nonetheless have complex fact patterns. In a word what does this all mean?

Stress. That is what it means, and the manner in which the individual copes with that stress lays the groundwork for how long he remains alive. In our town we lose a judge or a lawyer on average about once a year. Causation is often cancer or heart disease. The habits to deal with stress vary, but it doesn’t take a lot of imagination to see that a steady diet of stress followed by cigarettes and booze shorten life.

Some die early because they have that genetic marker that means they will. One lawyer was a healthy Himalayan climber. He got cancer and died anyway. Most however are not so destined; they are overweight because the demands of the practice require a remarkable number of hours for study, review, and preparation for hearings. We make about 40 important decisions a week and are often disappointed by results of trials.  It is easier to have a scotch at the end of each day than to go for a walk.

Next time the term “lawyer” comes to mind try not to think about the iconic suit or car. Think of it as a dangerous profession.  Think of lawyers as people who have run the risks to really understand the secret knowledge. They do it for you.

You Are Born With An Estate Plan You May Not Want

Born free? Not entirely. Should you acquire any property while here on earth the State has a plan for your stuff when you cross that Great Divide if you do not timely exercise a right to control that disposition yourself by a will, trust or other designations made in writing.

Here are some quotes from Washington’s statute, RCW 11.04.015. For those of you who lack quick access to Black’s Law Dictionary, be advised the word “Intestate” ( not to be confused with ‘Interstate’ ) means dying with out a will. “Issue” means children. I have left out references to “domestic partner” because it makes the whole thing too complex and you get the idea, a substitute for “spouse”.

Also you need to know the basic rule that any property acquired during marriage is presumed to be community property, unless by gift to a spouse solely or anything he or she receives during marriage from inheritance, which is separate property. Property you bring to a marriage is separate as well.

Here we go:

The net estate of a person dying intestate, or  that portion thereof with respect to which the person shall have died intestate, shall descend subject to the provisions of RCW 11.04.250 and 11.02.070, ( each of these mean you cannot escape this earth without paying bills timely submitted )  and shall be distributed as follows:

(1) Share of surviving spouse. The surviving spouse shall receive  the following share:

(a) All of the decedent’s share of the net community estate; ( ‘net estate’ is that nasty reference to the bills ) and

(b) One-half of the net separate estate if the intestate is survived by issue; or

(c) Three-quarters of the net separate  estate if there is no surviving issue, but the intestate is survived by one or
more of his parents, or by one or more of the issue of one or more of his  parents; ( What? ) or

(d) All of the net separate estate, if  there is no surviving issue nor parent nor issue of parent.

At this point your eyes should be glossed over and you may want to read the rest later. If not, we resume with the statute:

(2) Shares of others than surviving spouse. ( That is the other half the separate property or all of it if there is no spouse, or that funny one-quarter leftover in 1(c) above ). The share of the net estate not distributable to the surviving spouse, or the entire net estate if  there is no surviving spouse, shall descend and be distributed as follows:

(a) To the issue of the intestate; if they are all in the same degree of kinship to the intestate, they shall take equally, or if of  unequal degree, then those of more remote degree ( as in one of your children predeceased you leaving you  grandchildren ) shall take  by representation.

(b) If the intestate not be survived by issue, then to the parent or parents who survive the intestate. This happens more than you would anticipate; think of young male Microsoft software engineers with a lot of stock and a really fast car.

(c) If the intestate not be survived by issue or by either parent, then to those issue of the parent or parents who survive the intestate; if they are all in the same  degree of kinship to the intestate, ( your brothers and sisters ) they shall take  equally, or, if of unequal degree, ( predeceased brothers and sisters who left children behind ) then those of more remote degree shall take  by representation.

(d) If the intestate not be survived by issue or by either parent, or by any issue of the parent or parents who survive the intestate, then to the grandparent or  grandparents who survive the intestate; if both  maternal and paternal grandparents survive the intestate,  the maternal grandparent or grandparents shall take one-half and the paternal  grandparent or grandparents shall take one-half.

(e) If the intestate not be survived  by issue or by either parent, or by any issue of the parent or parents or by any grandparent or grandparents, then to those issue of any grandparent or  grandparents who survive the intestate; taken as a group, the issue of the maternal  grandparent or grandparents shall share equally with the issue of the paternal  grandparent or grandparents, also taken as a group; within each such group, all  members share equally if they are all in the same degree of kinship to the  intestate, or, if some be of unequal degree, then those of more remote degree shall  take by representation.

Sort of Talmudic isn’t it? And there are even more mind bending statutes that everyone can avoid by executing a will. All in all dying testate is better, and cheaper. Don’t die with the estate plan the State has for you, it is an awful thing to do to the people you leave behind, except the lawyers who can easily spend a significant portion of your estate figuring out what all this means after you are gone.

Powerless Power of Attorney

The time is present day. The situation is your surviving parent has entrusted you with the role of attorney in fact in a power of attorney he had drafted for him years ago by his long time entrusted attorney, or worse, a form he did himself. Dad is in a nursing home, and that nursing home is demanding payment. You go to the bank where you know he has saved money for this point in his life. You present your identification, and the durable power of attorney which was duly notarized and appears official.

The bank will not give you the money. Much like a car salesmen discussing price, someone in the back room, normally described as “Legal” denies the document is adequate to access the funds. Most of the time “Legal” isnt on the premises, and instead is days from reviewing then rejecting your document.

This is the everyday occurrence of the adult child of elderly parents find themselves in. The remedy is usually an expensive guardianship the durable power of attorney was meant to avoid altogether.

Generally I disagree with the bank, but that doesn’t count for much.

More often the best defense is an active offense. What you want to have had before this point is a lawyer who has actually had the experience of finding what works and what doesn’t work with banks since the apocalypse banking crisis in 2008. Often it is just a matter of naming them directly in the document, but you can’t do that now because Dad isn’t really able to know what he is signing. I am afraid this is something you hope the trusted lawyer knew. Sometimes it is a good idea to visit the bank and develop a relationship with the people in the lobby with your parent along with you well before any of this happened.

Sometimes none of this works, and it is time to ask the trusted lawyer what he knows about guardianship.