J.R., Sue Ellen and the Sanitarium

If I remember the 1980’s correctly, there was a nighttime soap opera called “Dallas” where the women were beautiful, the men tore their ties from their necks when upset, and there was a lot of money.

There was also a lot of fiction. I recall not who shot JR, but that JR did a lot to deserve being shot. For example he constantly was threatening to put his wife, Sue Ellen, in a sanitarium. I am not sure what a “sanitarium” is in Texas but I suspect it is a home for the mentally ill.

For  us here in Washington State, 30 years later, we can rest assured that marriage alone is not a basis to have one or both members of the union committed. Normally the rules call for the least restrictive alternative for those declared to be incompetent. This unfortunately is not always in the best interest of the incapacitated.

I recall a Judge deciding an elderly lady could be granted her wish, and return to her home so long as supervised 24/7. The caretaker turned her back after the lady appeared to be asleep, only to have her rise, trip and fall to her death on a bed knob. I tore my necktie from my shirt when I heard.

Will Contests

My Daddy ( a lawyer ) used to say Judges are like a box of chocolates. You never know what you’re going to get.

But there is one thing I know you will get when you contest a will most of the time: Defeated.

Most of these cases are brought on three basis; 1 )Testamentary Capacity: for example the Dad’s mind was gone when he signed this will or 2) Undue Influence: someone taking an unusually large or unnatural gift had a position of trust with Dad or 3) Fraudulent Misrepresentation in the execution of the document: Dad signed a will when he was told it was a contract to buy a new Ford.

This is a complex area of shifting presumptions of law which start out favoring the will as written, and is peppered with problems of proof to over come that presumption ranging from excluded testimony due to the Dead Man’s Statute to just how good your medical expert is who saw Dad before he signed this will.

This trouble is compounded by the standard of proof. The contestant has to prove these things that would invalidate the will by clear cogent and convincing evidence. That is the civil equivalent of putting a man in jail, well beyond a preponderance.

Often the question is would Dad have any reason to do what the will says. If so, it is doubtful the there is much of a contest. Better off spending the attorney fees on a real box of chocolates.

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.

It’s Not Your Money

Sometimes even the most seasoned lawyer is shocked by the conduct of people, often those in their own family.

I am just fresh from the probate and guardianship calendar where I witnessed an institutional trustee, a bank no less, hand up an order approving expenditures from a child’s special needs trust that was rejected immediately by the bench.  Instead our Court had lots of questions about why it was necessary to spend in increasing amounts tens of thousands of dollars taking the extended family on fabulous trips to Mexico and the Caribbean.

Meanwhile the needs of this special needs child who apparently had been left quite a bit of money in a will seem to be glossed over.

The really remarkable thing was the bank seemed unphased by this spending. Usually I see this kind of conduct from individuals named as trustee, because the term “fiduciary” is not part of their lexicon. Webster defined fiduciary as one who holds the trust or confidence of another. The first known use of the term is from 1641, and derived from the Latin fiduciarius which sounds a lot like fidelity to me.

I wonder what the Latin is for “taking advantage of the helpless”? And what about the bank, what Latin term can we assign them? There is no Latin term for “clueless”.

Another Myth: The Right Lawyer can Win

Nope. not true. The lawyer cannot change the facts. Nor can he or she change the law. At best they can persuade. Here is something Aristotle taught me about persuasiveness (Yes, I am old enough to have known him personally):

What you want to persuade the court to do must be logos or logical.

What you want to persuade the court to do must be ethos or ethical.

What you want to persuade the court to do must be pathos or likable.

WHAT? The court has to like what they do? That’s right ladies and gentlemen we have to count the Judge’s emotions, reactions, take aways or whatever you want to call that have a dramatic impact on your case. I recall one chambers conference where my father was discussing possible outcomes in the case when the judge said to him “I wouldn’t do that even if I liked your client”. I am not making this up.

So, the right lawyer cannot change the outcome of the case. But the wrong lawyer can certainly lose it. Is the lawyer you might hire logical, ethical and likeable? Do they seem to be on a mission or really interested in your case?

And candidly ask yourself, do you think your case is logical? Is it ethical? Do you think it is likable?

Pathos. Think about it.

Its the Lawyer’s Fault

I was fired today. So were the other lawyers working on an estate. I believe the perception is we were making the simple will complex. Mind you, this was day two of the estate for this lawman, and just a few weeks after the probate was opened.

The problem originates with how we count money; yours, mine or ours? In lawyers terms; your separate property, my separate property or community property. Depending on what chair you sit in the perception is different.

Now that is an educated comment. Now instead the estate will be divided on the basis of ignorance, force of personality, and power structures in the departed’s family. Might makes right.

Never you mind that. It is the lawyers fault for pointing out the law.  Shame on us for charging a fee to help them. From the chair they sit in the perception is all lawyers are just there to use up the estate.

Not so. Most of the estates lawyers I practice with or against are second generation lawyers not really in it for a quick buck. That was the case today.

Recently I was asked how long has it been that a non-lawyer could just go to court and explain his side and have the judge make a ruling without the assistance of counsel. “About a thousand years” I said. Sure you can go, but the number of trip wires that have been laid down in front of you are so numerous you will not recognize yourself or your case on the other side.

Here is how this happened. We The People make a rule, but the rule doesn’t seem right in all circumstances, so We The People start erecting exceptions to the rule and before you know it, it is so criss crossed and cratered you do not really know what it means. If you have any doubt try reading the tax code.

You can blame it on the lawyers if you want. Frankly I was a bit surprised Jimmy Buffett didn’t blame it on us rather than a woman in his famous tune Margaritaville.

Some people claim there’s a lawyer to blame,

But I know, its my own damn fault.

True Stories from the Twilight Zone Part 2

Modern medical science is a wonderful thing. I have witnessed with my own eyes how one can be suspended between life and death in that places Rod Sirling used to call the Twilight Zone. Sometimes however we just age into that place of time and space the rest of humanity calls “dementia”.

In this state your Will does not help you. It is a “dead letter” until you yourself are dead, then zombie like the Will comes to life.

So what do we do in the Twilight Zone? Once there, you are not competent to sign anything that anyone will recognize. Instead someone, often a family member launches a guardianship proceeding. This takes at least two lawyers and the associated cost; one to file the petition and one appointed by the Court to act as your guardian ad lietum.  If in your demented state you declare you are not a danger to yourself financially or physically a third lawyer is assigned and we may end up in trial.

I have been such a third lawyer. Even though it was clear my client was hearing only the signature strings of The Twilight Zone we spent a day in trial. Washington’s guardianship statute does not give the third lawyer the latitude to concede defeat, he must go to trial.

And so on a sunny day in early May I spent my time in trial with my elderly client who wandered around the courtroom during the proceeding, hollering things like “There is the Judge, on his Altar!”. ( Some lawyers I know might say my client wasn’t so demented after all.)

The cost of all of this was well over $10,000 to the client. The experience: priceless.

The take away from all of this is there has to be a better way. Is there not a means to convey to some trusted person or people a means to handle financial and health care decisions when you cannot? The short answer is yes.

1) Durable Power of Attorney. The power of attorney means you hand someone else the authority to work for you in your place. It is “durable” because it survives your incapacity or dementia. Otherwise if not referred to as durable, the law says that paper lapses because you are no longer able to revoke it when you are in the Zone.

This document can be effective immediately, leaving open the chance someone might use it a little too early, or “springing” taking effect when you can find a doctor willing to say in writing you cannot handle your affairs any longer.

The revocation and reassignment of this authority as dementia approaches is the stuff of legend in my business, leading to that court fight and perhaps guardianship you tried to avoid in the first place.

2) Care Managed Trust or Revocable Living Trust. This device allows you to put into your own hands as Trustee then the hands of a trusted person as the successor Trustee all your property. It can also take the place of your Will. It is not a “dead letter” as you enter dementia but instead is very much alive and continues to operate as you pass from the Twilight Zone across the Great Divide. It can avoid probate.

I have yet to see one of these instruments come into the office that has not been terrifically expensive to set up, maintain, and in the end, doesn’t have all the property transferred to it, necessitating a probate of the left out property.

All kinds of things happen in the Twilight Zone. The best you can do is make some judgments ahead of entering that dimension of time and space, decide to trust or not to trust, and then live the rest of your life.

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.

How Do I Avoid Probate?

I hear this question daily in my practice. Here are some answers.

1) Avoid Death. This is more of a medical than legal answer, but as far as I know no one has been able to do this yet.

2) Die Penniless. Some really famous and well regarded people have died penniless, thereby avoiding probate as there is nothing to distribute. Consider this short list: Jesus Christ, Mahatma Gandhi and Pope John Paul II to name a few. Spend everything and gain fame. Not a bad choice. Or you can give it all away, but then what do you live on while you are waiting to die? Just to avoid probate? Maybe not such a great choice.

3) Will Substitutes. This is actual legal solution. These will substitutes take several forms. Here is a non-exhaustive list:

A) Joint tenancy With Right of Survivorship. This is a favorite box that is checked on bank records not by the depositor but by the bank clerk because, they testify in the estate litigation later, “We always do it that way”. It is indeed remarkable how much law is practiced by the unlicensed in bank lobbies across America.

What this designation on the bank record does is make the money in the account instantly the property of anyone else on the account when one of them dies. What this means is the niece who was trusted to pay grandma’s bills suddenly has a windfall when grandma dies and creates a family fight that will last a generation. Moral of the Story: If you are going to open a bank account with anyone you are making an estate planning decision.  Ask to see the card before you sign where they indicate. It is possible to name people as joint tenants without right of survivorship, or just give them signatory authority if you do not want them taking at death. But then you haven’t avoided probate, because the probate is how we move the money to the people you want to receive the money at death.

B) Revocable Living Trust. The idea behind this approach is the person contemplating death transfers everything he or she owns to a trust that is controlled by the person transferring to it. The house is titled under the trust as is the car, and anything else that needs a name attached to it. The trust then transfers assets to the residual beneficiaries when the person making the trust dies, and no messy probate need be commenced. At least that is the idea.

Revocable Living Trust is something Susie Orman has told America via television to do to avoid probate. Susie doesn’t have a law degree or a license to practice law, but she is on television so apparently we are to believe her. She is in California as well, and based on my ancillary contact with the probates of California I this is probably a good choice.

The trouble is I have yet to see a fully funded trust after the persons have died that formed it. It seems there is always something left out, not transferred to the trust during life, and the only option is filing the probate. Additionally not everyone in Washington State caught Susie Orman’s legal advice on television. As such, showing up at the bank and declaring yourself the Trustee of your parents Revocable Living Trust draws a blank stare, and a standard response: Go file a probate and bring us authority from the Court that you really get your parents money.

C) Contracts. This is related to the first two, but can include a life insurance policy. It could also reference a transfer of land at death due to the tenancy in land being only a life estate, with remaindermen named in the recorded deed. Wow, that sounds hard. It doesn’t really dispose of all the property either, only the land.

So, to sum up an answer to the question “How do I avoid probate?” the answer for most of humanity is to buy into a lot of gimmicks that are usually filed under “Mistakes a lawyer will fix later by filing a probate”.