Dont Go Changing

 

Don’t Go Changing..Billy Joel

Your will without me..

Don’t change your beneficiaries…

M’mmm..

I draft the clauses, I draft the sections, ..

I am the lawyer and your not…

I have started putting a bold stamp on first drafts of the wills and trusts I draft. I sometimes never hear from the client again after mailing out the first effort. I worry they start doing their own work after they see my start on their project.

draft

We have seen such events in our chambers. The mouth runs dry at the sight of such chaos in what once was another lawyers fine product.

Often folks arrive in my office not really knowing what they want to become of their estate when they are gone. One couple had a knock down drag out fight about who got what when they were both gone. I heard too much information about their children; who is “responsible” and who is not. I proposed sending out a draft for them to think about but the argument raged on for about an hour.

Finally they left, I sent what I thought was what they wanted and never heard from them again. Perhaps they are still struggling for control of what happens when they cross out of this plane of existence where the argument between them will finally end, leaving their children to continue the fight.

Susie Orman is Practicing Law Without A License : POSTSCRIPT

Susie Orman has a television show. She gives financial advice. Now she is giving legal advise, and she lacks a license to do so. She must be stopped.
Suze-Orman1
I have seen her on television telling everyone in America they want to avoid probate by putting everything they own and ever will own into a revocable living trust, so that when they die the assets just flow to the beneficiaries without probate.

This is good advice as I understand it, in California where she lives, but I will not say this as the State of California has not issued me a license to practice there. No similar license has been issued to Susie either, nor has she been to law school.
california state bar
Meanwhile she is telling my clients Your lawyer wont tell you this and goes on to talk about this trust. Right, I wont advise it because it is usually a mistake for people in Washington State, unless there is some really good reason to do so.

Meanwhile I have clients mad at me, thinking I am taking advantage of them. I don’t see how I could be so overreaching, when a will costing about a sixth to a tenth of a trust while the client is alive and the probate after the client has passed often less than the cost of the trust altogether.

Besides, I know some banks that just will not recognize the trust, and demand letters testamentary from the probate court in any case.

Susie Orman is practicing law without a license and must be stopped. But the California State Bar will not stop her, because, wait for it….

She Is Not A Lawyer

POSTSCRIPT : I had heard through legal channels will kits with Suze’s name on have begun to surface. I started typing her name into the Google search strip and got as far as half way through her last name when the bar auto completed “Suze Orman Will and Trust Kit”. suzeorman_kits_musthavedocuments

My apologies for not spelling her first name correctly earlier.

The website calls these the “Must Have Documents”. It ain’t necessarily so. Not everyone needs a trust.

Also some people have special needs that only a lawyer with some experience will see.

The price for the “Must Have Documents” is a promising $63 according to the website. This supposedly saves the average American $2500 according to Suze.

“It ain’t necessarily so
It ain’t necessarily so
De things dat yo’ liable to read in de Internet
It ain’t necessarily so”

Porgy and Bess with edits.

REPEAT: Suze Orman is practicing law without a license and must be stopped.

Escheat- Your Property Goes to the State

Recently I heard an account of the Roman leader Sulla, (138 BC-78 BC) who decreed not only his political opponents but also those of wealthy families should be slaughtered so as to have their property escheat to the state so as to pay his army.
Sullahead

Even today, those without obvious takers of property like children or siblings, nieces and nephews, are at risk for this Roman escheat to the state, unless they have a will of course. However even after the fall of Rome it was not always so.

Things were more civilized by 1066 when Britain was successfully invaded for the last time.
Invasion of England

By then it was just a given that when you died, even though you may have paid for the land with a lifetime of rents and military service, the real property of which you were “seized” reverted to the feudal lord.

You really wanted to be a lord then, unless you were King Harold II, who died after receiving a Norman arrow to the eye at Hastings.

arrow in the eye

All his feudal retainers lost their rights in land to the Norman conquest; William was in charge and started parceling out the country to his army.

Of course sometimes the land was given to the vassal who fought for William with extras, such as adding the term “and his heirs” meaning the knight would be able to leave the property to his children. Thus it was not best to die childless in feudal England however, or the land will escheat back to the William once again.

William the Conqueror

The record keeping wasn’t all that good the either. Paper was expensive and it took a lot to make up a deed. One had to know Latin, and then find the right rock from the field to represent the transfer to tie to the deed.

medeval deed

If the lord had no paper or couldn’t write, let alone in Latin, typically he would call together the neighbors for a ceremony where he took up a dirt clod from the land in question, and placed it in the hands of the grantee vassal, thereby making the latter “seized” of the land.

Hopefully people remembered whether you were seized of the land for your heirs as well. I guess the take away from this sort of transfer is the vassal wants lots of witnesses, preferably young and healthy.

In consideration for these grants the lord got a share of the crops or other profits from the land.
Medeval farming 2

These ancient dues predated the Conquest, and William apparently liked them so much he just kept the rent the same. Perhaps that is why no one has successfully invaded England since, and loyalty to the Crown remains intact.

Today in the United States you can will your property to whomever you wish, just be sure to do so, lest the lords who govern your state end up with it.

The Power of Myth at Death

Neptune
What ends up happening with a mans estate is often just a question of how strongly a myth about “what ought to be” is held by those who survive him, rather than what it says in black and white in the will.

This goes far beyond the “what Dad really wanted” comment I hear, literally, every day in my office and am powerless to use as evidence.

images rolling rock

Instead I refer to the mythical powers people assume they have upon the death of another. Conduct they would never dream of adopting when the man was alive suddenly becomes the standard for these new demi-gods.

centaur

First it is the personal property that disappears. The thought process must be “He doesn’t need this any more” or the more morally justified “I better take this for safekeeping”.

What disappears? Guns of course, jewelry ( often a ring ), watches and other valuables but even step stools and kitchen knives. I am not making this up. The Ring

Next comes the money. Often people claim to have been told by the decedent the life insurance is “for” someone else than is named in the policy. This may be true but it is a myth that the benefactor will do the right thing every time without a trust actually being drafted.
Frodo

Worse is the personal representative ( or executor ) who, upon gaining access to the funds of the departed become a Gollum-like creature, cursed with the evil ring that bends the mind to the dark side and a bright side; a schizophrenic.
gollum

On the surface Gollum is a fiduciary taking great care of the estate. But alone, the personal representative assumes special powers which, after making certain incantations, can rationalize use of the funds of the estate for personal purposes while the rest of the heirs sleep through the process.
wizard
Often myth infects those waiting for the money. Memories of how the personal representative behaved on any given occasion in the near or distant past which might imply a likely failure to act with strict adherence to the terms of the will and duties imposed by law somehow become fact, and extrapolated into current, on going theft of the estate.

Gollum 5

But this is not without some basis, even if it is not theft that occurs. For example other myth frequently encountered is that a “good person” who is named as personal representative is not necessarily up to the task of managing not only the assets of the estate timely, but also managing the other myths the heirs named in the will have preloaded into their minds which activate as the news of the death spreads.
Frodo 2

Objectivity is often the first casualty in probate. If you happened to be named personal representative of an estate in a will, take a deep breath and consider the evidence before you, not the bias of your mind. Also consider declining the appointment. Stay in the Shire, away from the ring.

The Forgotten Child

Last willFor some reason I have a run of kids that seem to have been forgotten during the first will preparation interview of late.

The client comes in, even fills out the form about who their children are, then we have the meeting, discuss what is their desires, and a first draft is sent out US Mail as a hard copy.

Then something happens. Perhaps it is guilt. Perhaps they just remember that long ago in another state another child was born, but the fates separated them somehow. An excited call comes to the office to amend to include this flesh and blood so long ignored, often with stressful questions as to what trouble this means. Shakespeare missed a good plot, but I believe there was a child of this nature that undermined everything in the musical “Camelot”.

This happens so often there is actually legislation about children who are forgotten. They are called “pretermitted”. This forgotten child is due whatever percentage he or she would have received had the parent died without a will.

The most recent iteration of our statute has the pretermitted claim limited to children born after the will is signed. Still, there will be a fight in any case.

Death is a good time to remember children, particularly in a will. You may have cause to disinherit, but do so expressly, lest that Iago child of your youth return to spoil Othello’s estate.

Licensed Legal Technician: Not Quite A Lawyer

Our state seems to be a testbed for the rest of the country for everything; gay marriage, legalized marajiuana and now legal advice with a stamp of approval that really ought to have a lot of warning labels.

What appears to be an effort to manage the free market of legal advice, not all of which is licensed, the Supreme Court of Washington has developed a rule to annoint persons who have not gone to law school with the approval to discharge limited legal tasks. This can be of great help to persons who cannot afford or do not need a full service firm. Or it can be a disaster because there are tripwires in the legal landscape no one but a lawyer with some experienc is going to know about.

The standards are tough however, so who knows- this might work out. The Bar has yet to accept any applications as they are still working out the operational details but first thing applicant must show is “good moral character”. I think that means you have no felonies as a start, but in my time on the Character and Fitness Board it meant generally a disregard for the Rule of Law.

Next there needs to be some education, either an associates degree in law or postgraduate work in legal studies.

Finally, and most appropriately, one has to work for a lawyer for at least two or three years so the applicant has some idea how this all really fits together.

Then the applicant sits for an exam, not quite the Bar Exam. Perhaps we should call it Bar Exam Lite.

This all sounds vigorous, and yet I cannot help but be worried about unintended consequences, like people relying on legal techs when they really need a legal engineer called a lawyer.

The Super Will

Red S

When one dies, one leaves behind two kinds of property: Probate Property, and Non-Probate Property. The SuperWill Statute can blur this distinction and the only kryptonite which can weaken the will are contained in exceptions buried deep in the Code that spawned this hero to some, foe to others.

Probate property is that which is controlled by the will of our departed. The most common example is the house he lived in. Non-probate property is that which, by contract, avoids the probate process and goes directly to those who are designated as beneficiaries payable on death. The most common example is a bank account with a payable on death or joint tenancy with right of survivorship.

But lo- what if we make that contract, perhaps even in a trust with your spouse, then later make a will that says something different about the same property? What if you don’t even know the SuperWill statute exists? Worse, what if you decide to rely on it but are not aware of the limitations on its use?

Lying underneath the surface of many wills is a reference to re-directing property that was non-probate, and suddenly becomes probate, often without a lot of forethought. A recent Supreme Court decision  in our state strongly suggests one can undo the intent of a trust one may have made with a predeceased spouse just by writing a new will. After reading the decision I can say this is not going to happen every time.

Like the man of steel, the Superwill statute is not something to mess with unless you have your own member of the Justice League evaluate what you are doing. The estate planning forms you may get from a paid or unpaid source are not members of the Justice League. After reading the aforementioned case, I am not sure even the new licensed legal technicians Washington now allows have membership.

Like Superman the SuperWill can change everything, or not, and knowing what you are doing means everything.