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.

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There is no Substitute for Experienced Advocacy

1. We Are Created Equal. Among the Jeffersonian myths that have survived is the idea that all men are created equal. Perhaps that is true, but after birth their experience differs widely. They may not be that educated gentleman farmer Thomas Jefferson saw us as becoming these generations later. In fact, most are not. Thomas Jefferson

In the last several years the bench and bar have had a buzz word gone into policy called “Access to Justice”. I like to call it “Access to Firearms” but it has nothing to do with the Second Amendment.

2. Access to Justice. The basic idea is that with some forms and instructions on where to file them and how to confirm a hearing anybody can achieve “access to justice” and state their case like Jefferson’s farmer. So the court system wrote some forms and gave instructions on where to file them.

Unfortunately, as it is often said, Thomas Jefferson was the last man who had a grasp of the entire body of knowledge as it existed at the time. What this means to the pro se litigant he cannot possibly grasp what he is getting himself into.

Well, yes, you can get yourself in front of a judge. You can get yourself behind the stick of an aircraft too after reading the instructions on the internet on how to fly, but it is not a good idea. airplane crash

3. The Results. Often this does work out. Some questions are fairly straight forward. Divorce might be simple, then it might not.

There are a lot of “what if’s”. A child support issue between two Boeing employees can be done pro se as well.They each get issued a W-2 every year from which one can calculate monthly income and feed that data into a child support software to produce a result. Done deal right?

What if one of them doesn’t work for Boeing? What if he is self employed? Things get complex. I can say for sure the pro se litigant will not be able to fashion the court order that will equitably divide the Boeing pension in a way the company will recognize and follow it.

4. Too Close to the Problem. The other thing a lawyer does for a litigant that he cannot do himself is achieve some degree of objectivity about his or her case. Is it really a good idea to rush into court guns blazing? Are you sure the judge is going see things the way you do? courtroom antics

Maybe you can have a lawyer look at what you’re doing and see if it is alright. But then what if you botch the hearing by saying something that erodes the presumption that everyone comes to court in good faith and a bona fide dispute that requires a consumption of that most precious of commodities, judicial time?

How often have I seen the pro se litigant in court with a ton of paper in front of him, obviously served on the other party and the bench earlier, with this idea that his pleadings represent some manifesto that will change the course of human events? courtroom drama

The reality is he comes off instead just as an unhappy man wasting everyone’s time and his relief is denied. There is no substitute for experienced advocacy. courtroom

5. The Outer Limits. I cannot write down here what I have learned from 30 years of practice. It is part of the secret knowledge of lawyers, but even if I had to “tell all” I couldn’t transpose into words for you Jeffersonian gentlemen farmers how to conduct your case. It is in part and art, and otherwise just the nature of experienced advocacy.

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.

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.

Bar Stool Advice

Regularly we have people come in who made legal decisions for themselves based on what they heard at work, or at church, or sitting on a bar stool. It doesn’t seem to matter at all that the co-worker, minister or drinking buddy has never practiced law and in all likelihood lacks a license to do so. Usually things are a lot worse after following the layman’s advice.

The ultimate bar stool of course is the internet. Apparently because this medium is a source of reliable information some of the time the unreliable publisher gains the same credibility.

Even when credible, following up on the information can be dangerous. I am sure there are instructions on how to fly an airplane on the internet. Getting a plane, taking off and navigating to a safe landing is something else entirely.

Worse, I was seeing my doctor this week and I asked him how often people came to see him having first self diagnosed on the internet. “Daily” he said.

Tomorrow I see my dentist and I will ask him the same question. Can you imagine, “Do It Yourself Dentistry”? All I can recommend ( and this is not legal advice) is considerable time on the bar stool before attempting the same at home. Be sure to have the cab that brought you there wait because you are going to need to go to the ER after a few minutes.