From the Gates of Hell I Spit at Thee

I am here, in my office, drafting the wills for people who have been divorced for decades but have never really let go. The Ahab and the Whale relationship has not faded in time. Notwithstanding a series of firewalls in law that preclude inheritance by a former spouse, I can see how, particularly given the presence of children from these star crossed marriages, the ex-spouse might end up with property of the testator.

Death is often unexpected. Particularly for the younger set, there may not be a will, and there may not be grandchildren of my client to inherit by intestacy of that sudden decedant. So where does that unfortunate child’s property go?

It goes up. Up the chain of command to that long ago divorced spouse, the surviving parent receiving now what the Superior Court would not give them during the divorce proceedings. Thank you very much.

And so we draft and draft, our dead stick control demanding proof from the grave before a child gets anything that a will or other disposition exists to not have this event of post divorce decree property division take place.

Rather haunting, isnt it? It would be easier if you could take it with you.

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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.

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.

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.

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.

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.