Bar Stool Advice

Regularly we have people come in who made legal decisions for themselves based on what they heard at work, or at church, or sitting on a bar stool. It doesn’t seem to matter at all that the co-worker, minister or drinking buddy has never practiced law and in all likelihood lacks a license to do so. Usually things are a lot worse after following the layman’s advice.

The ultimate bar stool of course is the internet. Apparently because this medium is a source of reliable information some of the time the unreliable publisher gains the same credibility.

Even when credible, following up on the information can be dangerous. I am sure there are instructions on how to fly an airplane on the internet. Getting a plane, taking off and navigating to a safe landing is something else entirely.

Worse, I was seeing my doctor this week and I asked him how often people came to see him having first self diagnosed on the internet. “Daily” he said.

Tomorrow I see my dentist and I will ask him the same question. Can you imagine, “Do It Yourself Dentistry”? All I can recommend ( and this is not legal advice) is considerable time on the bar stool before attempting the same at home. Be sure to have the cab that brought you there wait because you are going to need to go to the ER after a few minutes.

Law is a Lot Like Grandma’s Cooking

People want certainty in the law. A black, A white. Often when a client is upset with the other side in a case they declare their opponent has broken “THE LAW!” as if a trap door will open under the transgressor.

It is often not so clear. Instead the law, in particular the practice of law is a lot like my grandmothers cooking.

How much do I put in grandma? Some. How much is that? A pinch. A smidge. How much evidence do I put on? Enough. You have to have done this to know what fits and leaves a good taste in the judges mouth, rather than something sour.

Much like the law she left a room to wiggle, a room for judgment, which like grandma’s cooking, is what Judges do.

Grandma used a tea-cup for a cup measure. There were no numbers on the side. And you know, it turned out well. Judges exercise a spice known as “discretion“, and that makes all the difference.

 

She Done Got Herself A Lawyer!

“Now she’s done it! This will screw everything up!”

I heard this while having lunch at the Totem Diner in my hometown Everett Washington this week. I have heard this before in my office.

Or I hear “She went to a lawyer”… stated with lament, as if the process of transferring property at death was as simple as filling your Chevrolet with gasoline at the Shell station.  Instead it is much more like replacing a timing chain.

The gas station metaphor works well here. The people into see me might as well say She really didn’t need a mechanic. It’s was really simple to work on cars until they started putting computers in them.  Everybody knew what to do. It’s was easy. Thats the way it should be.

Stated another way: Everybody already knows the house was supposed to go to me.

I look around at the people at the diner and I see what we call “plain folks”. They work when they can, and save what they can. They drive Fords or Chevy’s, go to church on Sunday and like football. And life is pretty simple, until some lawyer, or auto company, makes it complex. The people at the diner do not want life to be hard and they don’t want death to be hard either.

Unfortunately the only people who really know what is going on legally are lawyers just like the only people who know what is going on under the hood are the modern auto mechanics. Cars are safer and get better mileage than they did 50 years ago. We have come a long way from carburetors.

Likewise we have come a long way from the simple will. Consider that in the 200+ years the country has been in operation layers and layers of law have been enacted or cases decided by courts. Now how is the guy at the Totem going to figure that all out?

I would prefer to live in a simpler America. I liked working on my old mustang. But those days are gone for good. Like I rely on my mechanic, people are better off coming to see a lawyer for family property transfers. You know you will do it right, and leave it the way you want it instead of what “everybody already knows.”

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.

Personal Property At Death- A Crime in Progress

The worst thing that can happen to a lawyer is to be in a fight over personal property, particularly after the owner of the property has died. The people this unfortunate testator intended to have the asset post mortem may never see their wishes followed because the lawyer with any experience at all refuses to get involved with the fight.

Personal property is best described as objects people can pick up and walk off with at any time, but right after a death the owner is not in a position to object. This is opposed to real property which is of course dirt and the structures on it, or intellectual property like stocks and bonds that are generally not laying around the house at any given moment of one’s last breath.

For some reason it doesn’t enter the mind of the purloining party that this object doesnt belong to them, and that first lesson of kindergarten still applies post mortem. Instead it seems a new rule applies that begins with the phrase “He doesnt need this any more…..”.

So lets say the disgruntled heirs who have perhaps only the residual clause of the will to support the claim (which is a perfectly valid means to pass property ), as they are the takers under that final clause. The lawyer has to first prove the deceedant actually owned the property the dispossessed heir claims to have existed. Guns, tools, lamps, a wagon wheel from the 19th century, photos, silver, 1963 Seattle Worlds Fair memorabilia, all are among the claimed “disappeared” that have crossed this lawyers desk and have gone on to require a disproportionate amount of time to the value of the assets in question. We literally have gone to the local hardware stores trying to show the deceedant actually bought the Kobalt tools he always said he was going to buy, without any success.

We have in our state a great little statute that is supposed to help with this, and many other wills from other jurisdictions have something similar. The statute allows the person who has made the will to leave a list of who is to get what personal property at death, signed and dated, no witnesses required, so long as the will refers to the list and the will is properly executed with the two witnesses initially. The list can be changed at any time by the testator prior to death.

This avoids many problems post mortem. First it proves the testator had at least at one point ownership of the personal property. Secondly we know who he or she intended it to go to. Third, if suddenly someone who had access to the house at the time of death suddenly has the wagon wheel or a nice set of silver at Thanksgiving, we have a pretty good idea what to do next.

The oddity is that any value of object can be transferred by the statute. Our testator may have owned 5 acres of radioactive dirt next door to the Hanford Nuclear Reservation whose value is dubious but also a $100,000 yacht in the Everett Marina. It takes Wills Act formalities with the two witnesses to pass the worthless dirt, but only this list attached to the will to pass the yacht, no witnesses required. This invites fraud and forgery if you ask me, but then I worry for a living because I possess the secret knowledge of lawyers.

After Death Facebook Lives On

Todd Pack is to be thanked for this issue, his blog post this past week is entitled “What Happens to Our Facebook Account After We Die?”

The comments following the post describe a litany of unintended events both by the team at Facebook as well as the individual subscriber, who is now across the Great Divide and cannot now edit the profile. Like everything else that a dead person has an interest in here on earth, they fall into the control of your personal representative as soon as some probate court admits your will to probate.

I guess I will call the dead man’s interest in his Facebook page a “license” but I am sure the people who practice in the field of “intellectual property” ( yes that is what it is called ) might have a more elegant name for what Mark Zuckerberg hath begotten. Instead Facebook is there for us all to use, as long as we follow the rules. Given that Mr. Zuckerberg is only 27 years old today, I doubt he has given much thought to death and what the rules will be then.

One woman describes how her mother passed in 2007, she developed a profile in 2008 on Facebook, and then started getting requests she “friend” her dead mother.

For me the “autocomplete” feature of the software tears the bandage off each time I am writing to my surviving friends about the loss of our close friend Doug, then the sentence automatically spells out his name and a picture of his once happy family. The ostensible purpose is to ask me to include him in the discussion. Yes Mr. Zuckerberg, I would love to have another conversation with Doug, but I have a few years left thank you.

Meanwhile the other social networks are not any better. Linkedin sent me a solicitation to connect with Doug recently as well. I am thinking of Mary Todd Lincoln and seances held to have contact with her lost son in the White House might have had better luck.

So what to do? One commentator to Mr. Pack’s posts suggests directing the personal representative of the will  go about the process of winding these things up. This is a good idea, but I suspect the Letters Testamentary issued by our state court may not be recognized in Massachusetts, or wherever Facebook seems to be headquartered. The company, unlike it’s product, is not public.

Lets try it. At worse this latest generation of billionaires will ignore us and thoughtlessly interrupt our efforts at closure.

“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.

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.