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.