Dead Stick Control

In 2001 the legislature of the Evergreen State elected to extend the Rule against Perpetuities to 150 years. It had been 21. What that meant that anyone you wanted to have inherit your property had to be born within 21 years of your death. Now you can extend your dead hand well into the future. But should you?

Real Property, as we have come to understand, does not always go up in value. Neither do stocks, although the people who sell and trade them would argue with me. Do you really want to lock the trustee into holding stock for 150 years?

Will what you write out today make any sense when it is time for the trust to pay out? 150 years is a long time. Lots can change.  Stock in buggy whip company for example in 1861 would be worthless today. With 150 years to stretch out property, this means a soldier in the American Civil War dying at the First Battle of Bull Run, in July 21st 1861 could literally leave his property to a baby born on or before July 21st 2011.

What is really volatile however are social values. Consider the “Parentage” statute was until a few years ago called the “Paternity” statute, because until then maternity was a matter of fact whereas paternity was a matter of opinion. It is no longer so.  And for generations the statute came under the title of “Bastardy”.  We don’t use that term any longer, and instead society has apparently agreed to accept and pay for the results of all this free love. Can you imagine if our Civil War soldier tried to control the behavior of his descendants 150 years later?

What if that trust placed prohibitions on consumption of alcohol or tobacco as a condition of that child receiving his money? Perhaps the soldier could have prohibited the baby from owning slaves. Perhaps he could have conditioned the trust payments on choice of mate for his heir being a certain religion. Or maybe he just wanted to make a point about values that seem to be important to just about anyone living a life in America.

It is said it is still the case in the State of Louisiana when a young man declares he has chosen a bride there are three questions; Whose her Daddy? Is she Catholic? and Can she make a rue? From the perspective of a father these are good questions. They are also good questions from the perspective of a great-great-great grandfather.

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You Are Born With An Estate Plan You May Not Want

Born free? Not entirely. Should you acquire any property while here on earth the State has a plan for your stuff when you cross that Great Divide if you do not timely exercise a right to control that disposition yourself by a will, trust or other designations made in writing.

Here are some quotes from Washington’s statute, RCW 11.04.015. For those of you who lack quick access to Black’s Law Dictionary, be advised the word “Intestate” ( not to be confused with ‘Interstate’ ) means dying with out a will. “Issue” means children. I have left out references to “domestic partner” because it makes the whole thing too complex and you get the idea, a substitute for “spouse”.

Also you need to know the basic rule that any property acquired during marriage is presumed to be community property, unless by gift to a spouse solely or anything he or she receives during marriage from inheritance, which is separate property. Property you bring to a marriage is separate as well.

Here we go:

The net estate of a person dying intestate, or  that portion thereof with respect to which the person shall have died intestate, shall descend subject to the provisions of RCW 11.04.250 and 11.02.070, ( each of these mean you cannot escape this earth without paying bills timely submitted )  and shall be distributed as follows:

(1) Share of surviving spouse. The surviving spouse shall receive  the following share:

(a) All of the decedent’s share of the net community estate; ( ‘net estate’ is that nasty reference to the bills ) and

(b) One-half of the net separate estate if the intestate is survived by issue; or

(c) Three-quarters of the net separate  estate if there is no surviving issue, but the intestate is survived by one or
more of his parents, or by one or more of the issue of one or more of his  parents; ( What? ) or

(d) All of the net separate estate, if  there is no surviving issue nor parent nor issue of parent.

At this point your eyes should be glossed over and you may want to read the rest later. If not, we resume with the statute:

(2) Shares of others than surviving spouse. ( That is the other half the separate property or all of it if there is no spouse, or that funny one-quarter leftover in 1(c) above ). The share of the net estate not distributable to the surviving spouse, or the entire net estate if  there is no surviving spouse, shall descend and be distributed as follows:

(a) To the issue of the intestate; if they are all in the same degree of kinship to the intestate, they shall take equally, or if of  unequal degree, then those of more remote degree ( as in one of your children predeceased you leaving you  grandchildren ) shall take  by representation.

(b) If the intestate not be survived by issue, then to the parent or parents who survive the intestate. This happens more than you would anticipate; think of young male Microsoft software engineers with a lot of stock and a really fast car.

(c) If the intestate not be survived by issue or by either parent, then to those issue of the parent or parents who survive the intestate; if they are all in the same  degree of kinship to the intestate, ( your brothers and sisters ) they shall take  equally, or, if of unequal degree, ( predeceased brothers and sisters who left children behind ) then those of more remote degree shall take  by representation.

(d) If the intestate not be survived by issue or by either parent, or by any issue of the parent or parents who survive the intestate, then to the grandparent or  grandparents who survive the intestate; if both  maternal and paternal grandparents survive the intestate,  the maternal grandparent or grandparents shall take one-half and the paternal  grandparent or grandparents shall take one-half.

(e) If the intestate not be survived  by issue or by either parent, or by any issue of the parent or parents or by any grandparent or grandparents, then to those issue of any grandparent or  grandparents who survive the intestate; taken as a group, the issue of the maternal  grandparent or grandparents shall share equally with the issue of the paternal  grandparent or grandparents, also taken as a group; within each such group, all  members share equally if they are all in the same degree of kinship to the  intestate, or, if some be of unequal degree, then those of more remote degree shall  take by representation.

Sort of Talmudic isn’t it? And there are even more mind bending statutes that everyone can avoid by executing a will. All in all dying testate is better, and cheaper. Don’t die with the estate plan the State has for you, it is an awful thing to do to the people you leave behind, except the lawyers who can easily spend a significant portion of your estate figuring out what all this means after you are gone.

Lets create a new law that will make the world a more fun place.

Lets adopt a law recognizing ship captains can actually perform weddings on board their vessels while at sea. This would then make our law congruent with the myth.

Lets require a dearly departed’s will actually be read to the assembled grieving family, some of whom eagerly await to hear what bit of the material world they have been left. Attire must be black.

Lets require courtrooms actually be filled with curious onlookers throughout the entire trial, as it is in the movies, gasping at the appropriate moments.

Lets regulate Elvis impersonators, requiring a license and fees.

Let’s install bike lanes on freeways.

Let’s adopt left hand drive like they have in the United Kingdom, Jamaica, Hong Kong and a few other former colonies, along with Japan and assorted other countries in the Far East.

Lets require live entertainment for people while they are waiting for licensing and vehicle registration at the Department of Motor Vehicles.

Lets require postal employees to wear costumes of their favorite historical figures.

Lets require Disney to open and operate a theme park in every state, granting a waiver to Alaska and Hawaii as they already qualify as theme parks.

Lets adopt a 4 day work week. This leaves three days rather than two for lawyers to catch up on work.

If you could speak to one family member who has passed on, who would you pick?

I am sitting at the kitchen table my grandfather fabricated out of a used iron spool upon  which paper was wrapped as it came off the machines at the Weyerhaeuser plant  on the waterfront of Everett, Washington, my hometown.  The table is round, and has a Formica top.  Generations have eaten here.

I have chosen to write this piece sitting in the exact spot where ten years ago this September 11th I  first heard Bob Edwards of National Public Radio interrupted, then report that an airplane had flown  into one of the trade towers in New York.

It is the same spot where my grandfather listened all night to reports of the Normandy invasion on June 6th  1944. The radios have changed in that time, but they sit in the same place in  the kitchen.

Leslie Ralph “Spud” Hartman built this house himself in 1941-42 with the assistance of my grandmother Lenore and a few  friends. After Pearl Harbor was attacked December 7th 1941 men rushed to join the military. The government also began to designate certain industries as strategic, and also began to declare certain goods as war material.

Seeing the speed at which goods were being commandeered by the government he took delivery of the Sears-Roebuck  furnace he had ordered for this place, even though he wasn’t really ready for it. He spoke to the lumber supplier for the home, Martin Lumber, still on Broadway and Wall, to store it for him until he was ready.  The next day the furnace was declared war material, but he and grandma and my mother had heat throughout the war because he had paid attention. He was self reliant.

Then, without telling anyone he tried to join the Navy. Too old, he was told. And besides, he was working in a strategic industry.

And so he spent the war here at the mill, listening to reports from the front in this kitchen on a radio that sits where my radio sits. He watched the P-38 fighters training out over our bay, and one day saw a one of these airplanes in a steep dive fail to pull out in time and crash into our beautiful sea.

This house had the first television on the block in 1954. Spud won it in the Salmon Derby, held each year in our bay  when salmon was plentiful. The house was crowded with neighbors for weeks after that.

I was happy I had a television on September 11th 2001 because nothing Bob Edwards said prepared me for the pictures of the twin trade towers on fire then collapsing.

I had been calmly eating my oatmeal until Edwards report. He managed to get an eyewitness on the phone describing
how people were jumping from the towers. What struck me most about the interview was how calm and matter of fact the eyewitness delivered the facts, like he was calling a ballgame.

I recall thinking this, then contrasting to the reports of the same era as World War II. Perhaps Edward R.
Murrow was less emotional than the reporter describing the crash of the airship Hindenburg at Lakehurst New Jersey in
1937, but he was never flat.

The bumperstickers that declare “We will never forget” and display the flag are tattered, faded and worn now 10 years on. But this kitchen table is still here, and my memories are as fresh as my grandfathers were of his war. And I would like to compare notes.

State Sponsered Chaos at Death

Believe it and you know you can, we can count on the State to have the final say as to who gets your stuff when we die if we don’t timely make that decision ourselves.

“Timely” means after you are age 18 and before you die.

“Make that decision yourself” means making a will or having will substitutes in place.

In Washington State when you die without a will you are considered “intestate” and the statute is clear about what happens. If you are married it means much if not all of what you have goes to your spouse. Any property you brought to the marriage or inherited is split between your spouse and your kids. If you don’t have a spouse the kids get it, without much control. If you live somewhere else it might be different, but the results are the same- you have no say.

Think about it. Do you really want your 19-year-old son to gain control over enough cash to ruin his life? This happens more than we would like. Even so, a will substitute is not necessarily that great a means around the intestacy statute that if applied might slow him down a bit.

Making your 19-year-old son a payable on death beneficiary of a savings account means he gets the money sooner, and can lead to all kinds of tasteless events. I literally have a file in my office where the young man showed up for the funeral in the new car he bought after his father passed. “Look what Dad bought me!” he told the shocked mourners.

One thing you cannot pass at death is good manners, even with a will, but you might curb the excesses of sudden wealth.

This Won’t Happen to Me

Lawyers, like most groups, have listserves. I am in a few associated with the topic of probate and trust.

This came over the listserve today, July 6th 2011:

20 year relationship no marriage care giver/ kids took truck and served  client
 w/5day notice to quit within 2 days of death (death-July 2, 2011)  Realize
it’s partnership principles but what can be done to stop the  kids?

Before I say something real legal let me say this: This bit of barbarism is justified by all kinds of reasons; She never really loved Dad – only his money, She was horrible to the grandkids, This house is ours, not hers…the list goes on. None of it has anything to do with the law.

People inherit subject to probate, be there a will or not. True, if Dad never did marry the woman he lived with for 20 years the presumptions run to the kids, assuming he actually divorced or their mother died first. That is what dying without a will means. People will not Do the Right Thing absent something expressing Dad’s intent, like a will.

With or without a will probate is an orderly, statutory process designed to ensure everyone has a say and rights are protected. Tennant, which is the least this woman is, are entitled to 20 days notice to quit the premises. She is not a squatter, as Dad evidently desired her to live there.

What happened here is more reflective of pillage, and has nothing to do with the Rule of Law.

There is Nothing Simple About a Simple Will

I hear this every day, “we just need a simple will”. Listen up folks this is not that Jeffersonian America where we all exist as simple farmers who gather after the harvest is in to debate how our democracy should function then vote before planting time.

That simple America is what we all want but we just do not have. Any one with a retirement account of any kind and children needs to talk to a lawyer about whether or how this yet to be taxed asset should be handled in some kind of an estate plan that recognizes the reality of what you are leaving your kids or your spouse whether you know it or not.

Often I learn there are preset designations in retirement plans made part of the fine print of an employment contract you never read that takes control of the disposition of your retirement at death no matter what your Will says. Sometimes you can change it. Sometimes you can’t. Probably better to know when.

But we don’t want to know. Nor do you want to know what happens with the time share in Hawaii can’t be moved by the probate court in the other 49 states to the people you name in the will and a second probate might need to be filed there.

You really don’t want to know when and when not to use a will substitute like Revocable Living Trust, if you believe  you “just need a simple will”.

When I use the term “myth”, I don’t mean something that is false or a lie. When I use the term “myth” it is in the same spirit as the Greeks. A myth is how we explain ourselves. It answers the “why” in “why are things the way they are?”.

We want to live that Jeffersonian myth of plain folk who do the work of living and loving until they die and leave the world a better place for their kin and friends than when they arrived. Diving into the reality of how a marriage changes things, a divorce really changes things, that child you never adopted but raised changes things from how you would want it to be, or how your hard work will be bled away by a tax scheme that seems to punish your industry, all tends to make a mess of the American Myth.

“Besides, lawyers are expensive and we can’t afford it”.  Yes you can. My fees are flat for estate planning to encourage problem solving before there is real cost. If you want to see expensive, try estate litigation which heats up when the will isn’t right. That is where I more or less make a living, cleaning up the messes left by those who sought to live that American myth that we are a simple people without complex problems.

Ok, that’s enough for now. I gotta go.