The Over-Planned Estate

Once is enough.

Suddenly this office is awash in probates where the decedent decided to help out a bit more after leaving our office.

We had carefully examined the assets, laid out a disposition for the property in the will, and bid farewell to the client.

Next stop for the client: The bank to execute payable on death clauses to make sure the people had money when the client died to settle his or her affairs.

Isnt that what the will is for? Last will

The trouble is that second step means the estate is gutted of those funds and the bequests in the will never get funded. Absent the beneficiary taking a moral course back to our office to unwind this step, the money quite possibly never finds its way back to the estate to make sure the right people get the bequest, or even “people have money to settle my affairs”.

As a matter of law this money which is payable on death belongs to the person the client named after he left our office, and the beneficiary doesn’t have to “do the right thing”. remember you are not here in that event to make it right.

This event might fall into the category of ” I just want it to be simple ” but too much effort means it is not. Instead it gets complex. Saying it once in the right place is enough.

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.

Law is a Lot Like Grandma’s Cooking

People want certainty in the law. A black, A white. Often when a client is upset with the other side in a case they declare their opponent has broken “THE LAW!” as if a trap door will open under the transgressor.

It is often not so clear. Instead the law, in particular the practice of law is a lot like my grandmothers cooking.

How much do I put in grandma? Some. How much is that? A pinch. A smidge. How much evidence do I put on? Enough. You have to have done this to know what fits and leaves a good taste in the judges mouth, rather than something sour.

Much like the law she left a room to wiggle, a room for judgment, which like grandma’s cooking, is what Judges do.

Grandma used a tea-cup for a cup measure. There were no numbers on the side. And you know, it turned out well. Judges exercise a spice known as “discretion“, and that makes all the difference.

 

Men, Women and Executrix

Because equality is fashionable now, the law has drained the gender out of everything, even death. No longer is a woman making a will called a Testatrix. Sorry ladies, we are all Testators now. No longer is her husband the Executor of the will. Or if the roles are reversed and he dies appointing his wife the Executrix in his will that name is buried with him.

Instead after we die we appoint a “personal representative”, an androgynous person who is not allowed to cry or be remotely human. We are all faceless government functionaries now carrying out the acts of administration and winding up the estate.

This is what our legislature does with it’s time; rooting out every possible reference to a bit of remaining individuality that is gender. Once doing research I found a statue had been amended, and clicked the hyper link to see what had changed. I stumbled upon a document listing the effort someone in our budget strapped state to take the “he” and “she” out of every statute in the state in favor of androgyny.

It’s almost Stalinist, rewriting history to fit the current power structure. The amendments went on for several pages, single spaced, line after line listing code section after code section so revised. Right, this is an important task someone carried out?

My clients still use gender terms like Executrix, and I allow it in the privacy of my office. Our conversations are confidential and privileged so there is little chance any of them will be denounced as sexist.

Image by Thurber, used apparently with permission.

40 Days to Apply for Executor is Almost Biblical

Noah and the flood, 40 days.

Moses goes up the mountain into a cloud, 40 days.

Jesus in the desert, 40 days.

Modern Lent, 40 days.

Some mention of this 40 days in Lord of the Rings to, which I am told some consider Holy Writ.

And 40 days is the amount of time a spouse can allow to lapse and thereafter leave open the possibility someone else will apply to be personal representative, or executor of the estate of a lost husband or wife.

It is written.