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”.

Deadliest Catch

My daughter tells me the television show Deadliest Catch has advised America that no death certificate is issued if you die at sea. She wanted to know if this is right. The statement is too simple, but I suppose it was made to net in the viewer to the Alaskan fishing show hook, line and sinker. As all or most of those boats homeport from here in Seattle, I took the bait.

Without a death certificate how does the fisherman’s widow collect the life insurance, probate the estate, or remarry? Is she really held up by a faceless bureaucrat’s indecision or some policy that seems to hold the lives of everyone in suspense waiting for a body to be washed up on some shore? What if the man dies like Captain Quint in Jaws? Ick. Certainly Roy Scheider could later testify as to the circumstances of Quint’s passing, and get some proof of death from some court. But unfortunately Roy Scheider has a death certificate himself, so we have a problem.

Take heart. MarkPattersonLaw: The Secret Knowledege of Lawyers is prepared to give an answer for the fishermans  family pacing at the terminal here in Ballard. They can:

A) Wait seven years for the presumption of death to arise, then make the claim, shifting to all persons who wish to say the fisherman is still alive a burden to prove this is true. This would be hard for say, the life insurance company, to do in a world where every credit card transaction is forever remembered by some machine somewhere, not to mention cell phones, on line accounts, and the like. In the modern world then there would tend to be evidence of the “tidings of existence” the law requires the insurance company to show to keep from paying the money. Instead there would be an abrupt end, indicating death. Note our widow will be in court, hence hiring a lawyer after seven long years.

Or she could:

B) Hire a lawyer earlier to seek a determination the fisherman is dead based on evidence we have now. Good luck. Before the seven years is up the presumption is the man is still alive. The life insurance company tries hard to hang on to that presumption notwithstanding some pretty compelling circumstances. Here are some examples:

  • Where a man’s wife has just given birth to a fourth child, he was hopelessly in debt, had spoken of suicide the day before departing on a sea voyage and his bag is found next to a railing of the vessel the insurance company not only went to trial, but also appealed. The company ended up paying.
  • Another man fell into the Columbia river in a place of swift currents and had reportedly never learned to swim. Another trial, another appeal. Company paid.
  • Still another reports the insured was “last seen entering the surf”. Another loss for the insurance industry.

Note these all involve water and therefore are deaths at sea. They also involve a big fight over a long period of time. And they both involve, drum roll please, hiring a lawyer.

In the end there is no death certificate unless the Court orders it but there is a record of death. So, Deadliest Catch, your tag line wasnt really right, but close enough for television.

Perhaps the last option is the fastest.

C) Upload the Deadliest Catch segment where the fisherman was lost to U-Tube, then go on local or national news media complaining about delay. The widow may get her money, her probate property, and be able to start life again much sooner. This option will not necessarily lead to a death certificate.

Ok that’s enough. I gotta go.

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.