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.

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The Deed is Not Quick

I often get requests, sometimes a demand, for a “quick claim deed”. Rather like “Quick! Sign this Deed!”

Transferring real estate requires a writing called a “Deed” legally describing the property which is signed before a notary. To transfer all your interest without making a warranty about the condition of the title one signs a “Quit Claim Deed”. If you promise you really own the property and there are no undisclosed problems with the title, one signs a “Warranty Deed”.

There is usually not a rush to do so, and the term “Quick Claim” is not found in Blacks Law Dictionary.

Instead there is no such thing except in the lexicon of folk law and non-lawyers in a hurry.

“If something should happen to me …”

This is the opening line I hear from every estate planning client. “If something should happen to me….” and they go on to describe what they want to see happen with their property, I presume, when they die.

“If” is how this sentence starts. What do you mean if? Don’t you mean “when?”

“Something” means death. The ambiguity is not necessary. I suppose I could ask, “do mean if you should find you have a parking ticket, then all your worldly goods are to be distributed to your family?”  This is after all something that could happen to you.

“Should happen to me” makes it personal. Yes, of course that is why it is called a “will”  as opposed to a command to someone else. If we really could tell people what happens to their property at death I suppose we could call it a “shall”.

Actually this happens in bank lobbies all over America every day. Often people getting on in years will take a trusted adult child or nephew to the bank and “add them to the account” so that when they no longer can pay bills due to age or infirmity their bills get paid rather than executing a durable power of attorney. Now they really don’t want to impact what happens at death when they do this, but the bank employee will often take it upon herself to check the box on the little card attached to the elderly persons account which reads “joint tenants with right of survivorship”, setting in motion a sure bet family fight that will last a generation.

When this happens the will no longer controls that money, instead at the instant of death the trusted child or nephew is suddenly enriched by whatever is in that account. When later asked why she did this the bank employee invariably responds “That is the way we always do it”.

In Washington State we have a statue called the “Superwill” which if mentioned in the will the lawyer drafts there can be a fix of all these prior “shall’s” imposed by bank employees prior to the date of the will. Unfortunately when the elderly person later forgets they have executed a will, and ask the nephew to take them to the bank later in time, this marvelous legislated fix is undone. The elderly person dies, the family discovers what has happened, then what are the lawyers to do? Let the games begin.

OK that’s enough for now. I gotta go.

Hooray for Hollywood!

This was my first blog post ever. pparently no one in Hollywood listened. Oscar winning actress Anjelica Huston was being interviewed by Terry Gross on NPR’s “Fresh Air” recently and referenced her mothers death as something she couldn’t handle emotionally well. Understandable, she was 17. angelica huston

But then she said she didn’t hang around for the reading of the will . Well Anjelica, you didn’t miss much. Best to skip law school too and keep your day job as an Oscar winner.

Here is what I said about this in 2011. At least I know Hollywood doesn’t care what I write here.

Apparently without any desire to find out how it really works, Hollywood has developed several legal conventions for us all to consume, and presume, exist outside the theater. Here are some events on screen and how they play out in real life.

1) The reading of the will. You know how it looks, it’s the same every time. A really expensive looking conference room, a bushy browed lawyer at one end of the table reads to the assembled family members, or in the case of Rainman just Tom Cruise. In a slow steady voice he parcels out the property of the decedant and the people react. “I definitely got the roses, right?”
rainman
I hate to bring you up to date on current events but this doesn’t happen. I polled the lawyers on the probate list serve here in Washington State and found only one man who has ever been asked to do this and declared he would never do it again. It is a prescription for drama as well as domestic violence.

I regularly encounter people in the days following a death in the family who expect the reading of the will is going to be scheduled sometime by my firm, and that people should make travel plans to be there. Often people lie about whether this event has taken place, to yank the chain of the sister they never liked. “Too late Char, the will has been read! HAHAHAHA!”

2) Captains of ships can marry people. No. Persons licensed by authorities in states or other countries to perform weddings can marry people. Perhaps that marriage you are in was performed by the captain of the Love Boat, but you probably ought to check what credentials on land he was given for the act before you set sail. Don’t worry, the children are legitimate in most jurisdictions.the love boat in wreckers yard

3) The right lawyer can win anything. I literally have a memory of sitting on my fathers knee watching Perry Mason as a child. Perry won everything. The music at the end of the show with the books stacked up on screen as the credits rolled by scared the hell out of me. But Perry Mason is not the way it is. perry mason

If you want a reality check, watch A Civil Action starring John Travolta as the “right lawyer”. Its based on a true story, and I don’t think they deviatated from how things really happen. Fighting for an elusive result most of us would recognize as “justice” John makes mistakes and goes broke. And that ladies and gentlemen is a harsh reality check, even for the right lawyer.
John Adams
Even John Adams.