Susie Orman is Practicing Law Without A License : POSTSCRIPT

Susie Orman has a television show. She gives financial advice. Now she is giving legal advise, and she lacks a license to do so. She must be stopped.
Suze-Orman1
I have seen her on television telling everyone in America they want to avoid probate by putting everything they own and ever will own into a revocable living trust, so that when they die the assets just flow to the beneficiaries without probate.

This is good advice as I understand it, in California where she lives, but I will not say this as the State of California has not issued me a license to practice there. No similar license has been issued to Susie either, nor has she been to law school.
california state bar
Meanwhile she is telling my clients Your lawyer wont tell you this and goes on to talk about this trust. Right, I wont advise it because it is usually a mistake for people in Washington State, unless there is some really good reason to do so.

Meanwhile I have clients mad at me, thinking I am taking advantage of them. I don’t see how I could be so overreaching, when a will costing about a sixth to a tenth of a trust while the client is alive and the probate after the client has passed often less than the cost of the trust altogether.

Besides, I know some banks that just will not recognize the trust, and demand letters testamentary from the probate court in any case.

Susie Orman is practicing law without a license and must be stopped. But the California State Bar will not stop her, because, wait for it….

She Is Not A Lawyer

POSTSCRIPT : I had heard through legal channels will kits with Suze’s name on have begun to surface. I started typing her name into the Google search strip and got as far as half way through her last name when the bar auto completed “Suze Orman Will and Trust Kit”. suzeorman_kits_musthavedocuments

My apologies for not spelling her first name correctly earlier.

The website calls these the “Must Have Documents”. It ain’t necessarily so. Not everyone needs a trust.

Also some people have special needs that only a lawyer with some experience will see.

The price for the “Must Have Documents” is a promising $63 according to the website. This supposedly saves the average American $2500 according to Suze.

“It ain’t necessarily so
It ain’t necessarily so
De things dat yo’ liable to read in de Internet
It ain’t necessarily so”

Porgy and Bess with edits.

REPEAT: Suze Orman is practicing law without a license and must be stopped.

Dying Declarations Are For Slayers Only

After the funeral people come to see me about probating the Last Will and Testament the family member left behind. The interview sometimes begins like this:
“Dad wanted me to have the farm. He told me so on his death-bed. He said, ‘I want you to have the farm’.”
family farm

I ask for the will and can find no reference to this bequest. Instead the client and all her siblings are listed share and share alike which means they all get an equal portion ownership.

“I am afraid you have a hearsay problem”, I tell the shocked client.

eager person
This “dying declaration” always seems to benefit the client immensely.

There is some room for dying declarations to be admitted in court.

First, the person has to understand they are about to die when the statement is made.

Second, it is only admissible to prove the client is guilty of murder of the decedent.

Third, if proven, the client is not going to inherit in any case because of the rule that says slayers do not inherit. axe murderer

Fourth, I refer this person out to a firm that handles criminal law.

A good example of what might be admitted against the client was John Lennon’s exclamation “I’m Shot!” if offered in the prosecution of Mark Chapman. john lennon

Faced with this and other evidence, Chapman plead guilty to 2nd Degree Murder and is still in prison.

So friends and neighbors let’s go with what is on paper and not a dying declaration. If admitted at all, it might mean you are going to jail.

There is no Substitute for Experienced Advocacy

1. We Are Created Equal. Among the Jeffersonian myths that have survived is the idea that all men are created equal. Perhaps that is true, but after birth their experience differs widely. They may not be that educated gentleman farmer Thomas Jefferson saw us as becoming these generations later. In fact, most are not. Thomas Jefferson

In the last several years the bench and bar have had a buzz word gone into policy called “Access to Justice”. I like to call it “Access to Firearms” but it has nothing to do with the Second Amendment.

2. Access to Justice. The basic idea is that with some forms and instructions on where to file them and how to confirm a hearing anybody can achieve “access to justice” and state their case like Jefferson’s farmer. So the court system wrote some forms and gave instructions on where to file them.

Unfortunately, as it is often said, Thomas Jefferson was the last man who had a grasp of the entire body of knowledge as it existed at the time. What this means to the pro se litigant he cannot possibly grasp what he is getting himself into.

Well, yes, you can get yourself in front of a judge. You can get yourself behind the stick of an aircraft too after reading the instructions on the internet on how to fly, but it is not a good idea. airplane crash

3. The Results. Often this does work out. Some questions are fairly straight forward. Divorce might be simple, then it might not.

There are a lot of “what if’s”. A child support issue between two Boeing employees can be done pro se as well.They each get issued a W-2 every year from which one can calculate monthly income and feed that data into a child support software to produce a result. Done deal right?

What if one of them doesn’t work for Boeing? What if he is self employed? Things get complex. I can say for sure the pro se litigant will not be able to fashion the court order that will equitably divide the Boeing pension in a way the company will recognize and follow it.

4. Too Close to the Problem. The other thing a lawyer does for a litigant that he cannot do himself is achieve some degree of objectivity about his or her case. Is it really a good idea to rush into court guns blazing? Are you sure the judge is going see things the way you do? courtroom antics

Maybe you can have a lawyer look at what you’re doing and see if it is alright. But then what if you botch the hearing by saying something that erodes the presumption that everyone comes to court in good faith and a bona fide dispute that requires a consumption of that most precious of commodities, judicial time?

How often have I seen the pro se litigant in court with a ton of paper in front of him, obviously served on the other party and the bench earlier, with this idea that his pleadings represent some manifesto that will change the course of human events? courtroom drama

The reality is he comes off instead just as an unhappy man wasting everyone’s time and his relief is denied. There is no substitute for experienced advocacy. courtroom

5. The Outer Limits. I cannot write down here what I have learned from 30 years of practice. It is part of the secret knowledge of lawyers, but even if I had to “tell all” I couldn’t transpose into words for you Jeffersonian gentlemen farmers how to conduct your case. It is in part and art, and otherwise just the nature of experienced advocacy.

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.

An Unprobated Will Is a Dead Letter

So you have been named as the executor or personal representative in your uncles will. Great. Jefferson County Courthouse

Go to his bank and show them the will and try to get his money. Good luck. They will tell you to come back with Letters Testamentary from Superior Court.

Until a court declares the will to be the last will and testament of our departed, it is as dead as they are. In other words, the Court is the only authority for declaring a will should be followed.

Consider other possibilities. What if there are other wills? Maybe the one your uncle left with you is not the last will.  Perhaps there is a codicil. Anyone with an original will must surrender the document to the Court within 30 days of death so these things can be cleared up.

Probate is not a bad thing. Neither is a will. They just have to go together to mean anything.

The Doctrine of Virtual Representation Can’t Save The Farm

Sorry, but this does not mean they have passed a law which allows the client to log on to an interactive website and have a virtual lawyer who does whatever you tell him. Instead the concept predates the internet by centuries and means you are stuck with the decisions of those who came before you were born.

The Doctrine of Virtual Representation is a common law concept which means what we do today about our property can bind our heirs; both those that have been born or are yet to be born.

Imagine the chaos if we lacked this rule. Generations who come after decide they were not adequately represented in the deeds Grandpa did, and sue the estate for a larger share.

I had a great-grandfather who lost the ranch in a poker game. There was a divorce. How would it be if I now decided Great-grandma didn’t get enough out of her husband for that folly when the decree entered? So I look up his descendants and sue them?

Nope. Better to just get in your old truck and head on down the highway to the future, and forget about the past. What is done is done.

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.

 

The Rule in Shelley’s Case

Mary Shelley has nothing to do with this but it is something of a Frankenstein’s monster, because it’s the kind of law that keeps the owner of land from doing with his farm or house or beach property what he thought he did.

First recorded as a doctrine in the case of Wolfe vs Shelley in Elizabethan England (1581)  the rule transmutes the grant of a life estate to a person, remainder to his lawful heirs to fee simple absolute in the holder of the life estate. In other words he holds the whole of the title, and not just for his life.

Say a farmer grants his son a life estate in the farm, remainder to his heirs, meaning his grandchildren. The Rule in Shelley’s Case makes this grant a grant to the son without restrictions as to what he can do with the land. If he sells off the farm to Wal-Mart there isnt anything the farmer or the grandchildren can do about it.

It was the rule in Washington until 1961 when judges began it’s erosion in cases of interpretation of wills. By 1995 the whole thing was over, the legislature abolishing the rule for all transfers whether the farmer is alive or dead.

Apparently the orginal idea was to favor the passing of land by inheritance, rather than gift. Judging by the amount of asphalt covering prime bottom land in the Puget Sound basin I think we need to return to the Rule and Shelleys case, and its closely regarded cousin, the Doctrine of Worthier Title.

It certainly would make the practice of law more fun to have all these ancient terms to throw around in court and less parking lots here in our lovely state. Instead the Middle Ages finally ended in the second decade of my law practice and we are instead trapped in some dismal economic model that allows all property to go to the highest bidder.

Where The Bourgeois Should Not Die

In my business this is considered forum shopping, but if you have any real money at all, defined as more than $2 million dollars, please do not die in Washington State. An aggressive tax scheme begins at that point.

Some other bad places for your family but good for the tax collector are Oregon, Minnesota according to the anecdotal evidence which has washed up on the shores of Puget Sound and found its way to my office.

On the other hand if you are worried not about taxes but instead just want to die easy and see your family have your worldly goods sooner than later, avoid California and Florida.

This assumes you can plan your own death. How bourgeois.

Deathbed Gifts – Many Unhappy Returns

At some point your beloved elderly relative names you as attorney in fact in her durable power of attorney. You graciously accept the role and help her paying her bills and otherwise managing the house as her time on earth grows long.

Months, perhaps years later as your elderly relative lays dying she hands you her antique vase and declares “I want you to have this”. You accept graciously. Later you leave taking the vase with you.

Upon awakening the next day you find she has expired during the night. First there is the shock, then the funeral arrangements, and finally the probate gets underway. Everyone wants to know where the antique vase has gone. You tell the rest of the family our dear departed has given this to you.

The families response: PROVE IT.

The law in Washington is on the side of the family. The question is whether undue influence exists. For a will, contestants must show that undue influence lead to the execution of the will. For those who have done the labor of being attorney in fact who now find themselves defending a deathbed gift, the person receiving the gift must prove he did not practice undue influence by clear cogent and convincing evidence, far more than a preponderance.  Good luck. He had a “confidential relationship” which essentially presumes people in this role take advantage of the elderly.

Plan on returning the vase and save the attorney fees. It is curious at least that while we allow and encourage persons to transfer authority to manage affairs to someone they trust, rather than allowing an expensive guardianship to accrue, we presume they are acting with avarice if something as simple as a human act of gratitude is practiced as a last act in a life.