Dad Wanted Me To Have That Speedometer

Shortly after a death personal property of the decedant t starts to disappear. This is not pursuant to a will,  or any court order. Instead it is some knob that is turned in the mind of the people who “knew him well” they all say, followed by “he wanted me to have this speedometer” or whatever.

What they really mean is “he doesn’t need this anymore and I want it”.

Most wills in our state have a provision for a list to found with the will at death declaring who is to get what after the author dies. The list has to be dated and signed but not witnessed, which is an exception to the normal wills acts formalities. Even so, no matter how easy the law is to follow most of the time people do not fill out the list and this leads to all kinds of mischief.

Instead things tend to evaporate causing friction among those of us left behind. Some of what is fought over is of little value, take this speedometer for example. I literally spent a day trying to prove the existence of old car parts and tools, as the decedant had left a large tract of land littered with old junked cars and the parts to go in them. This proved fruitless, let alone who entered the property and removed this speedometer to some “classic” auto which was still rusting there on the lot.

It is much harder it seems to remove a car that will not start and is covered in blackberry vines than a speedometer that is supposed to be entombed with the car.

It’s madness really. Stuff that was junk before the man died is now some prize to covet and obtain by any means and at any price. I was paid my fee for the effort. We lost.

Dad Wanted Me to Have This

I have literally fought in court over this speedometer

Wastin’ Away In Litigationville

“We got divorced and the lawyers got all the money.”  “Dad died and the lawyers got everything”.

How many times have you heard that? Why is that?

People do stuff that is based on assumption, folk law, movie law, hearsay, and maybe a little bit of knowledge that is a dangerous thing.  Act first, then see the lawyer.

And so it is they find themselves here, in the office, for more than a visit.

There are certain phrases I have learned to read as a sure sign there is going to be a problem that lasts months. My favorite:

This will just take a minute.

No it wont. And it isn’t the lawyers fault. It’s just the way law is; complex, and not well represented in easily accessible media, the pulpit or on bar stools where most people go first for legal advice.

Personally I turn to the music of Jimmy Buffett for respite from the stress of having to tell people the truth about where they are, breaking into song on the way home:

Wastin away in Litigationville

Looking for my lost statute of laws

Some people say that there’s a lawyer to blame

But I know

It could be my fault

Where The Bourgeois Should Not Die

In my business this is considered forum shopping, but if you have any real money at all, defined as more than $2 million dollars, please do not die in Washington State. An aggressive tax scheme begins at that point.

Some other bad places for your family but good for the tax collector are Oregon, Minnesota according to the anecdotal evidence which has washed up on the shores of Puget Sound and found its way to my office.

On the other hand if you are worried not about taxes but instead just want to die easy and see your family have your worldly goods sooner than later, avoid California and Florida.

This assumes you can plan your own death. How bourgeois.

She Done Got Herself A Lawyer!

“Now she’s done it! This will screw everything up!”

I heard this while having lunch at the Totem Diner in my hometown Everett Washington this week. I have heard this before in my office.

Or I hear “She went to a lawyer”… stated with lament, as if the process of transferring property at death was as simple as filling your Chevrolet with gasoline at the Shell station.  Instead it is much more like replacing a timing chain.

The gas station metaphor works well here. The people into see me might as well say She really didn’t need a mechanic. It’s was really simple to work on cars until they started putting computers in them.  Everybody knew what to do. It’s was easy. Thats the way it should be.

Stated another way: Everybody already knows the house was supposed to go to me.

I look around at the people at the diner and I see what we call “plain folks”. They work when they can, and save what they can. They drive Fords or Chevy’s, go to church on Sunday and like football. And life is pretty simple, until some lawyer, or auto company, makes it complex. The people at the diner do not want life to be hard and they don’t want death to be hard either.

Unfortunately the only people who really know what is going on legally are lawyers just like the only people who know what is going on under the hood are the modern auto mechanics. Cars are safer and get better mileage than they did 50 years ago. We have come a long way from carburetors.

Likewise we have come a long way from the simple will. Consider that in the 200+ years the country has been in operation layers and layers of law have been enacted or cases decided by courts. Now how is the guy at the Totem going to figure that all out?

I would prefer to live in a simpler America. I liked working on my old mustang. But those days are gone for good. Like I rely on my mechanic, people are better off coming to see a lawyer for family property transfers. You know you will do it right, and leave it the way you want it instead of what “everybody already knows.”

Deathbed Gifts – Many Unhappy Returns

At some point your beloved elderly relative names you as attorney in fact in her durable power of attorney. You graciously accept the role and help her paying her bills and otherwise managing the house as her time on earth grows long.

Months, perhaps years later as your elderly relative lays dying she hands you her antique vase and declares “I want you to have this”. You accept graciously. Later you leave taking the vase with you.

Upon awakening the next day you find she has expired during the night. First there is the shock, then the funeral arrangements, and finally the probate gets underway. Everyone wants to know where the antique vase has gone. You tell the rest of the family our dear departed has given this to you.

The families response: PROVE IT.

The law in Washington is on the side of the family. The question is whether undue influence exists. For a will, contestants must show that undue influence lead to the execution of the will. For those who have done the labor of being attorney in fact who now find themselves defending a deathbed gift, the person receiving the gift must prove he did not practice undue influence by clear cogent and convincing evidence, far more than a preponderance.  Good luck. He had a “confidential relationship” which essentially presumes people in this role take advantage of the elderly.

Plan on returning the vase and save the attorney fees. It is curious at least that while we allow and encourage persons to transfer authority to manage affairs to someone they trust, rather than allowing an expensive guardianship to accrue, we presume they are acting with avarice if something as simple as a human act of gratitude is practiced as a last act in a life.

Executrix or Treat?

It is a cruel joke that some name siblings co-executors or executrix’s to administer the estate at passing. In the parents effort to be “fair” the result is often the worst that is said about the probate process is the result, that is long delay and lots of attorney fees. Siblings often change at death, and those who were cooperative and loving as the parent passed suddenly realize their ship has come in and things get nasty.

(Let me pause and comment on the lexicon; we no longer have gender in Washington, so either what were men or women acting for the estate are referred to as “personal representative”, but the name just is not as cool.

It’s like the word “moot”. Clients love this word and try to work the conversation around so they can use it. Most blow it and say instead “mute”.

If that were to happen the case would be mute? I am asked. Yes, I say, without correction but that concept leaves my mind full of imaginative sketches of what that must look like; for example lady Justice has not only a blindfold over her eyes but a gag in her mouth, her hands full of a scale and sword, so there is just no hope to gain freedom.  Now let’s get back to the topic of this post.)

On the other hand the abuse of power one sibling can have over the rest is often not a good result either. The remedy is litigation, more attorney fees, more delay. The media refers to this as “languishing in the courts” as if there were Biblical or epic proportions to how long conflict can last in courtrooms in America. Now the image is lady Justice wailing and grinding her teeth in a kind of hell.

In an effort to avoid this awful thing called “probate” people contemplating death resort to will substitutes like trusts. Frankly, my experience is the Trustee ends up in just as much trouble as the personal representative, and the beneficiaries are just as scared they are being “taken”. The administration which was designed to take a few weeks actually takes longer than a probate because the rules are not as clear.

People have been dying in this jurisdiction since it was a Territory ( no one died here before that ) and so there is plenty of law on the topic of death. Trusts on the other hand are designed to live on, the zombie version of the dead. As a relatively new way to pass property the legal ground is not as well tread. At least the term “trustee” is gender neutral, and we don’t have to wait for the legislature to emasculate the man in charge, which would otherwise happen because any reference to gender in Washington causes the citizenry to go mute.

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.

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.

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.