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.

A Six Pack of Lawyer

My client is getting divorced from her husband who works at Costco. He has a sizable retirement account which we must divide by “qualified domestic relations order”, or “QDRO”.

What this does is segregate money to her own account which she would own free and clear when the divorce enters and without tax consequences. Of course Costco, like any other company, has a say about what the order looks like. It is common that we more or less follow whatever rules the given company may want to impose on how this gets divided.

Costco is the first company I have seen that actually charges the couple for the task of reviewing the order for accuracy.

This has led me to question what this is going to cost. I wonder whether the Costco lawyers come in multi-packs, shrink wrapped together and on a pallet. Individually the lawyer is not that expensive, but a six-pack of lawyer taken all at once the fees tend to add up.

I am glad they take American Express. My firm does too, but you can see us one lawyer at a time.

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

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.

Your Parents Estate Is Not An Opportunity to Live Out Long Held Grudges

Lets say your parents die. Lets say they trusted you to “do the right thing” so they have made you the personal representative of the estate when they are both gone in order to distribute the estate “Subject to Probate”. Lets review what that means.

“Subject to Probate” means notifying creditors and paying the bills. It means making sure the funeral is paid for and the taxes have been addressed. It means making sure the people who are to get the money do get the money.

“Subject to Probate” does not mean a witch hunt. It is not a cry to “unleash the lawyers”. Your parents estate is not an opportunity to get back at your siblings. This is not your money, it belongs to the people or charities listed in the will, “subject to probate”.

During the probate the personal representative is not allowed to profit. If you are the personal representative you have what is called a fiduciary duty to the people named in the will. The metaphor is that the probate is not an arms length transaction, and certainly not a means to “get a good deal” particularly if it is at the expense of the others named in the will.

The appropriate metaphor instead is more closely related to family life, instead of held at arms length, you hold them close. If you find you cannot do this, resign. All will be better for that act of discretion.

 

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.

It’s Not Your Money

Sometimes even the most seasoned lawyer is shocked by the conduct of people, often those in their own family.

I am just fresh from the probate and guardianship calendar where I witnessed an institutional trustee, a bank no less, hand up an order approving expenditures from a child’s special needs trust that was rejected immediately by the bench.  Instead our Court had lots of questions about why it was necessary to spend in increasing amounts tens of thousands of dollars taking the extended family on fabulous trips to Mexico and the Caribbean.

Meanwhile the needs of this special needs child who apparently had been left quite a bit of money in a will seem to be glossed over.

The really remarkable thing was the bank seemed unphased by this spending. Usually I see this kind of conduct from individuals named as trustee, because the term “fiduciary” is not part of their lexicon. Webster defined fiduciary as one who holds the trust or confidence of another. The first known use of the term is from 1641, and derived from the Latin fiduciarius which sounds a lot like fidelity to me.

I wonder what the Latin is for “taking advantage of the helpless”? And what about the bank, what Latin term can we assign them? There is no Latin term for “clueless”.