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.

Lawyers with SuperPowers

Lawyers Road Review

There is a publication that comes to me unsolicited called Super Lawyers.
Superlawyer logo
I know some of the people featured there and they seem perfectly ordinary to me, one might say mild mannered. But perhaps when they hear the cry of the client needing legal assistance, they leap into a phone booth, peel off their civilian clothes and emerge as a Super Lawyer.

Superman

Actually, I find many of the people who come to see me believe all of us have some kind of extra power that we call on when in conflict. Here are a few examples:

Encyclopedia Juris. All knowledge about the law is possessed by each lawyer. This power is activated by non-lawyers who begin the conversation with “Quick Question” followed by something esoteric about securities law or patents or something that just doesn’t land on my desk or anyone I know. Any lawyer who actually possesses this…

View original post 343 more words

Governance of the Country

Lawyers Road Review

My daughter works inside the beltway of Washington D.C. She tries to make it better, really. But factors get in her way. beltway

Sometimes she comes across a madness that seems to reflect a need to present a front to the media. Talking heads seem to lead to a poll, which seem to lead to remarkable events, like a party willing to bring the country to the brink of disaster because they worry about the legislation of our lawfully elected government has already passed.

Same as it ever was

Except it is not.

Instead of the faith we have in the people we have elected, wisely discharging the public trust, ostensibly able to change things if they don’t work out we are governed by talking heads on television and the polls they generate. That is the new face of democracy.
talking heads

Congress lacks confidence. They instead live in fear of these people we apparently listen to and…

View original post 58 more words

Bond, James Bond

Lawyers Road Review

Skyfall-JamesBond

Summers in London seem to always feature that gritty diesel smell and taste in the mouth that is just more pronounced there than any other large European city. Forgetting the taste for a moment and checking my watch, I folded the copy of the Financial Times I had been reading, checked my watch again and dodged the black taxi’s as I crossed the street to the Oxford club for lunch.

My host, a graduate of the University, had learned I would be in town and graciously proposed we meet. My father had always maintained one must be prepared with coat and tie when travelling in Europe, lest one not be admitted to such a place as the Oxford Club. I am happy to report he was correct. There still are places other than a courtroom where attire counts.

Unexpectedly we were joined by several members of Her Majesties Government…

View original post 366 more words

The Sands of Iwo Jima Timeshare

Sands of Iwo JimaClients come in with timeshare presented as two different legal problems:
1) Contract, as in how do I get out of this and
2) Estate planning, what happens to this when I die.

The first is usually answered by you sell it for a lot less than you paid for it.

The second depends on whether you only have a license to spend your vacation in some remote location the United States took by force, or you actually own some of that sand in fee simple absolute. More common is the license variety represented by “points”.

Shortly after I began composing this piece an estate planning client came in with the points variety. She actually uses the points. Much like any other amphibious invasion she spends considerable time planning and plotting more than a year in advance in order to maximize her usage, and not get stuck with the leftovers of places our country has seized but no one really wants, like a vacation on Iwo Jima.

Representing Veterans: They Have Seen More Than Anyone Should

Lawyers Road Review

I have had the pleasure of representing Veterans, most often in the estate planning context. Sometimes I think my courtroom tales curl the toes, but the truth is the conflict we address day in and day out is without bloodshed. The tales these men tell evidence more at stake  and a privilege to hear.B-24

An older fellow was brought in with a scar running vertically across his forehead. During WWII he had been ground crew in England for the bombing campaign in Europe but volunteered to fly as the pay was 50% higher, $225 a month instead of $150. He was assigned to a B-24 as a tail gunner as he was small of stature.consolidated-b-24-liberator-bomber-hit-by-flak-02

The story is a German flak shell exploded near his plane blowing out the windows of his gunnery seat and causing the gash in his forehead. “I liked Europe”, he said, “but I went at the wrong time.

View original post 337 more words

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.

Dont Take The Hearsay Rule Personally

I have clients that do this.

They come into the office, relate a story and declare a conclusion. I lean back in my chair, review my notes and I tell them about 2/3rds of it is inadmissible as evidence. This is not well taken, like I am telling them they are unable to relate what they heard accurately. Well I’m not, but the hearsay rule is.

The rule reads something like this:

No statement, made out of court, shall be admitted into evidence for the truth of the matter asserted.

What?

Lets break it down: HEAR. You hear someone something,  assume it is true, then turn and then SAY it to someone else like a Judge and ask him to assume it is true too.

Example: “John told me the light was green when I went through the intersection”. Using this statement to prove the color of the light is hearsay. My clients will then  come to Johns defense, as if he is being accused of lying, which really confuses the issue.

It’s so much better if you actually saw the light. “I saw the light was green when I went through the intersection”. Not hearsay.

It’s just remarkable how often I interview a witness or a client and find most of what they have to say is based not on their own first hand knowledge, what they actually saw but instead a mass of hearsay, peppered with preexisting judgments about the actors involved and a personal agenda.

Hearsay. It’s an old rule, but a good rule. Please, don’t take it personally.

Evidence : As Seen on TV

There are no rules of evidence on television but that is where most folks learn to practice law.

On television lawyers can do anything, present anything and say anything and the judge always follows the script. The problem of evidence in real courtrooms is that this is not television and what may be admissible in fiction may not be admissible in a real court.

If you think about it Rules of Evidence are important so the fate of people and their property are not just a question of emotion or prejudice or the right scriptwriter, and instead their fate is based on what is reliable, or authentic, or can withstand a good questioning.

People come to me with their opinions and declare it to be evidence. Bits of paper that may support their position become facts set in stone when handled by them, but go up like so much smoke when marked by the clerk, offered as evidence then objected to on any number of basis; hearsay, authentication, the best evidence rule, the list goes on.

Then they get mad. Well fine, be mad, but what you see on TV is not evidence.