The Sands of Iwo Jima Timeshare

Sands of Iwo JimaClients come in with timeshare presented as two different legal problems:
1) Contract, as in how do I get out of this and
2) Estate planning, what happens to this when I die.

The first is usually answered by you sell it for a lot less than you paid for it.

The second depends on whether you only have a license to spend your vacation in some remote location the United States took by force, or you actually own some of that sand in fee simple absolute. More common is the license variety represented by “points”.

Shortly after I began composing this piece an estate planning client came in with the points variety. She actually uses the points. Much like any other amphibious invasion she spends considerable time planning and plotting more than a year in advance in order to maximize her usage, and not get stuck with the leftovers of places our country has seized but no one really wants, like a vacation on Iwo Jima.

The Super Will

Red S

When one dies, one leaves behind two kinds of property: Probate Property, and Non-Probate Property. The SuperWill Statute can blur this distinction and the only kryptonite which can weaken the will are contained in exceptions buried deep in the Code that spawned this hero to some, foe to others.

Probate property is that which is controlled by the will of our departed. The most common example is the house he lived in. Non-probate property is that which, by contract, avoids the probate process and goes directly to those who are designated as beneficiaries payable on death. The most common example is a bank account with a payable on death or joint tenancy with right of survivorship.

But lo- what if we make that contract, perhaps even in a trust with your spouse, then later make a will that says something different about the same property? What if you don’t even know the SuperWill statute exists? Worse, what if you decide to rely on it but are not aware of the limitations on its use?

Lying underneath the surface of many wills is a reference to re-directing property that was non-probate, and suddenly becomes probate, often without a lot of forethought. A recent Supreme Court decision  in our state strongly suggests one can undo the intent of a trust one may have made with a predeceased spouse just by writing a new will. After reading the decision I can say this is not going to happen every time.

Like the man of steel, the Superwill statute is not something to mess with unless you have your own member of the Justice League evaluate what you are doing. The estate planning forms you may get from a paid or unpaid source are not members of the Justice League. After reading the aforementioned case, I am not sure even the new licensed legal technicians Washington now allows have membership.

Like Superman the SuperWill can change everything, or not, and knowing what you are doing means everything.

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.

Executrix or Treat?

It is a cruel joke that some name siblings co-executors or executrix’s to administer the estate at passing. In the parents effort to be “fair” the result is often the worst that is said about the probate process is the result, that is long delay and lots of attorney fees. Siblings often change at death, and those who were cooperative and loving as the parent passed suddenly realize their ship has come in and things get nasty.

(Let me pause and comment on the lexicon; we no longer have gender in Washington, so either what were men or women acting for the estate are referred to as “personal representative”, but the name just is not as cool.

It’s like the word “moot”. Clients love this word and try to work the conversation around so they can use it. Most blow it and say instead “mute”.

If that were to happen the case would be mute? I am asked. Yes, I say, without correction but that concept leaves my mind full of imaginative sketches of what that must look like; for example lady Justice has not only a blindfold over her eyes but a gag in her mouth, her hands full of a scale and sword, so there is just no hope to gain freedom.  Now let’s get back to the topic of this post.)

On the other hand the abuse of power one sibling can have over the rest is often not a good result either. The remedy is litigation, more attorney fees, more delay. The media refers to this as “languishing in the courts” as if there were Biblical or epic proportions to how long conflict can last in courtrooms in America. Now the image is lady Justice wailing and grinding her teeth in a kind of hell.

In an effort to avoid this awful thing called “probate” people contemplating death resort to will substitutes like trusts. Frankly, my experience is the Trustee ends up in just as much trouble as the personal representative, and the beneficiaries are just as scared they are being “taken”. The administration which was designed to take a few weeks actually takes longer than a probate because the rules are not as clear.

People have been dying in this jurisdiction since it was a Territory ( no one died here before that ) and so there is plenty of law on the topic of death. Trusts on the other hand are designed to live on, the zombie version of the dead. As a relatively new way to pass property the legal ground is not as well tread. At least the term “trustee” is gender neutral, and we don’t have to wait for the legislature to emasculate the man in charge, which would otherwise happen because any reference to gender in Washington causes the citizenry to go mute.

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.

Empty Grandmas Accounts Before She Dies to Avoid Probate?

I wrote this post because I saw this question as a top search on my dashboard.

The answer is no. There are several problems with this approach.

1) Crime. That is what this is, Crime. Go to Jail, Do not pass GO, do not collect any $200. You will be characterized as “financial exploiter” at least if you do this in the state named after the first President, and that means you fall under the “slayer statute” and as we all know, slayers do not inherit. Or at least I think we all know this.

2) Breach of Fiduciary duty. There I go again with all that legal stuff. The trouble is that “legal stuff” can get you in trouble, if not in jail, at least sued. Lets say grandma put you on the account “just in case”. It is still not your money. While the bank is authorized to allow you to remove it, the disposition of those funds really have to be for grandma’s benefit and not those who are left here on earth when she passes. She put you on the account because she trusted you, and when we start hearing the word “trust” all kinds of duties attach.

3) Joint Tennant with Right of Survivorship. Lets say grandma opened this account with you and personally, not the bank employee, checked the box that says this or shortened to JTWROS. That is a will substitute that means when she dies the money is yours without probate. Note the timing. It will not be a defense to say that you will inherit this money some day anyway through this non-probate transfer. What if she needs the money before then?

I suspect there are more reasons not to do this but the post is getting too long. You may have good reasons to avoid probate, but this approach is too dangerous. In layman’s terms, don’t take things that don’t belong to you. You don’t have to go to law school to know this. I think we all learned this in kindergarten.

“Do it yourself will kit” – the driver is asleep at the wheel

Why should anyone hire a lawyer to draft a will? Because drafting it yourself is like driving on the freeway on your first day behind the wheel.

That man contemplating death and writing his own will drives outside of the lines weaving from centerline to shoulder, throwing gravel and screetching tires after his funeral, when reasonable minds differ on what he intended. And, as he is out of the blue and into the black, he cant come back, the only mind that matters is that of the judge. Along for the ride in this inexperienced drivers vehicle is the whole family.

Do you drive a car on the freeway before getting accustomed to car in the neighborhood? How many will writers have litigation experience and know how things really work in court? I mean real court, not the courtrooms on television.

There are perfectly straightforward software packages out on the internet that seem logical and can convey the intent of the will writer well. In that case the will writer is someone in a distant state trying to make a buck out of volume sales without a care really about the end user. Sometimes these things work out.

Sometimes they dont. What if the actual end user of the software wants something other than is in one of these cans? What if there is any complications at all, like a step child, or you have specific ideas about a trust for children or grandchildren that may or may not work in your jurisdiction? What if the national canned will draft is just wrong about the laws in your jurisdiction? The laws of devise and descent are notoriously local.

Hire someone to at least look at what you have written for your last act on earth. The local lawyer will at least know where the speed traps are.

Living and Dying in Casual Wear

We have become too casual in America. We no longer dress for dinner, church, or work. Open collar is the look. Someone decided we all wear jeans on Fridays at the office, (everyone except me that is). OK fine, call it freedom or liberty or whatever you like but there is some harsh legal environments we really can’t be causal about.

You may find yourself in a bank, opening a checking and savings account. You are wearing Dockers and a shirt from Lands End.  You may find yourself in the personnel office of your new employer filling out forms about all kinds of things, including your 401(k) dressed in the style of the corporation, which in Seattle means you shop at REI. You may find yourself in your living room, with a life insurance sales man, and a lot of paper, and a lot of distractions and might even be in your pajamas. You may say to yourself, well, what do these have in common?

Death. You are probably making dispositions of what happens to the money you are handling in each situation. Not so casual, is it?

And Death changes things. Conduct that one would never believe possible from friends and neighbors, people you have trusted for years suddenly become crazed with greed when a windfall appears available. Naming your best friend as the beneficiary of any of these instruments tests him “to do the right thing”. He might fail the test. He might decide perhaps you really intended to disinherit your kids. There is little your lawyer can do about it.

Many of us in this practice draft in “superwill” or “blockbuster” terms into the will to fix all these issues with the will, clearly designating where property is to go if you have casually checked some wrong box in scenarios as listed above, but they can’t fix all of them, depending on the State’s statute on the topic. Generally these  super terms in the will won’t fix your causal approach to death if you open that account, are hired at a place that tolerates the REI look or have a visit from the life insurance salesman after the date you have executed your will.

Life and Death. It is time to get serious when you think about both. Dress for the event.

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”.

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.