Do Not Write on the Evidence

How many times has a client come in with a great piece of evidence only to find it is ruined because they have indelibly added their testimony to the face of it in blue or black ink. It is as if the intense need to control events blots out any kind of judgment they might have had, or restraint to action until they can get some legal advice.

A letter might have proved their point, but who can say who is the author of all the rest of the commentary?document

I can hear the objection already, the document is not authentic because the author is undetermined.

Or in the case of a bank statement which was certainly produced by the bank, but who wrote “Uncle Charlie told me I was supposed to get this!!!” on the face of it?

 

 

I have vivid memories of a judge examining the offered exhibit then angrily declaring “Some one has written all over it!” knowing that someone was seated at counsel table next to me.

 

Objection Sustained.mean judge

Need Not Be Present To Win

After the funeral a dozen people or so show up at the lawyers office, some times the same day, for the reading of the will. I think they get this idea this must happen from television and the movies. Television and the movies is where this unnecessary step belongs.
funeral procession
First, there generally is no reading of the will. Instead everyone with an interest in the estate gets a copy, but there are no elderly barristers with cherry lined law library waiting with fire blazing to read wills as funerals end.
read will

Second, you need not be present to win. When a person dies with a will leaving someone else property, the gift vests. Even if there is no will, by operation of law some heirs just plain take by doing nothing.

But there is always a catch, the vesting is subject to probate.
spendthrift
In other words, we have to pay the bills first.

Occasionally the lawyer will be hired to read the will but usually it is a huge disappointment for everyone involved. We don’t have a cherry wood lined conference room full of old books with fire blazing in the fireplace.
lawyers office
People fail to wear black or otherwise dress appropriately.
bad funeral wear

People do get upset, say things they might later regret, and otherwise misbehave. That part is like television and the movies. And that is why most lawyers refuse to read any wills to the family.

Title credits to Valetta King, Office Manager at Newton Kight LLP

Dying Declarations Are For Slayers Only

After the funeral people come to see me about probating the Last Will and Testament the family member left behind. The interview sometimes begins like this:
“Dad wanted me to have the farm. He told me so on his death-bed. He said, ‘I want you to have the farm’.”
family farm

I ask for the will and can find no reference to this bequest. Instead the client and all her siblings are listed share and share alike which means they all get an equal portion ownership.

“I am afraid you have a hearsay problem”, I tell the shocked client.

eager person
This “dying declaration” always seems to benefit the client immensely.

There is some room for dying declarations to be admitted in court.

First, the person has to understand they are about to die when the statement is made.

Second, it is only admissible to prove the client is guilty of murder of the decedent.

Third, if proven, the client is not going to inherit in any case because of the rule that says slayers do not inherit. axe murderer

Fourth, I refer this person out to a firm that handles criminal law.

A good example of what might be admitted against the client was John Lennon’s exclamation “I’m Shot!” if offered in the prosecution of Mark Chapman. john lennon

Faced with this and other evidence, Chapman plead guilty to 2nd Degree Murder and is still in prison.

So friends and neighbors let’s go with what is on paper and not a dying declaration. If admitted at all, it might mean you are going to jail.

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 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.

An Unprobated Will Is a Dead Letter

So you have been named as the executor or personal representative in your uncles will. Great. Jefferson County Courthouse

Go to his bank and show them the will and try to get his money. Good luck. They will tell you to come back with Letters Testamentary from Superior Court.

Until a court declares the will to be the last will and testament of our departed, it is as dead as they are. In other words, the Court is the only authority for declaring a will should be followed.

Consider other possibilities. What if there are other wills? Maybe the one your uncle left with you is not the last will.  Perhaps there is a codicil. Anyone with an original will must surrender the document to the Court within 30 days of death so these things can be cleared up.

Probate is not a bad thing. Neither is a will. They just have to go together to mean anything.

The Doctrine of Virtual Representation Can’t Save The Farm

Sorry, but this does not mean they have passed a law which allows the client to log on to an interactive website and have a virtual lawyer who does whatever you tell him. Instead the concept predates the internet by centuries and means you are stuck with the decisions of those who came before you were born.

The Doctrine of Virtual Representation is a common law concept which means what we do today about our property can bind our heirs; both those that have been born or are yet to be born.

Imagine the chaos if we lacked this rule. Generations who come after decide they were not adequately represented in the deeds Grandpa did, and sue the estate for a larger share.

I had a great-grandfather who lost the ranch in a poker game. There was a divorce. How would it be if I now decided Great-grandma didn’t get enough out of her husband for that folly when the decree entered? So I look up his descendants and sue them?

Nope. Better to just get in your old truck and head on down the highway to the future, and forget about the past. What is done is done.

How Durable is a Durable Power of Attorney?

You know, I am constantly asked, “Mark, now that my loved one is dead, can I still use his durable power of attorney for his benefit, to pay his bills and what not?

No. They are not that durable. And you certainly cannot use it to make dispositions other than what is contained in the loved one’s will.

Durable means it survives incompetency, that is beyond that time the principal is able to revoke it, but is still alive.

If it is not durable it is only “general” or specific to a given task, like the soldier who gives his wife a power of attorney to close on the house they bought before was cut orders for deployment.

If I can quote Neil Young,

Hey hey, my my”

“Rock and Roll can never die”

Once your gone, you can’t come back, “

“When your out of the blue and into the black“.

The same is true for the durable power of attorney. Once you are gone your power of attorney becomes a historical document and the will takes over. Unlike Rock and Roll, the Durable Power of Attorney can die, it dies with its maker.

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

The Carnage of Will Changes

Among the Do It Yourself Will carnage we see after people pass on are amendments made by themselves on the face of their documents after seeing the lawyer and then apparently changing their mind.

Reviewing a will that comes into the office all marked up we have to first decide who made the changes; the testator or someone finding the will and unhappy with his decisions while he was alive. Assuming the former, I was astonished to find a statute here in Washington State that sets out the rules for a do it yourself change to your will.

Forever we have had the rule that one must have a testator signing his will in the presence of two witnesses that sign it as well. That has not changed.

It seems however to be that one can revoke any particular gift by drawing a line through it, this is without two witnesses. You may not however add terms without those witnesses.

But then there is some case law that says if the deletion materially alters the disposition of the will in an unnatural manner, the partial revocation is void. So for example deleting a distant relative of a small gift might be OK, striking out two of three children without a formal disinheritance through Wills Act formality would not.

Think of the opportunities for fraud or other mischief, leaving it to the lawyers to unravel. The attorney fees involved are exponentially higher than merely returning to the lawyer for a codicil, usually a modest effort.

This would probably make good television. I hope am played by George Clooney.