Category Archives: It Ain’t Perry Mason

The Three Biggest Obstacles To Completing An Estate Plan

Although everyone should have an estate plan, I am constantly amazed at how many people procrastinate about following through with this key responsibility.  When I was new to the practice of law, it was much easier for me to look at the planning that many people fail to do, and dismiss it as irresponsibility and selfishness, but nearly a decade and a half of practicing law has softened my perspective, and I have an empathy for people who haven’t yet executed documents that will make life easier for those they leave behind when they pass away.  This is due in large part to some of the things I have had clients tell me when they have come in to start the process.  There are many different reasons why estate planning is not a high priority for a lot of people, but they generally fall into one of three categories:  The fear of confronting one’s own mortality, fear about the cost, and struggles with family conflicts and/or a desire to be “fair” with all of the children.

The Fear of Confronting One’s Own Mortality

After witnessing how this obstacle affects people, I am convinced that for many of them, it is an unconscious and reflexive reaction.  The last thing that most twenty- or thirty-somethings want to think about is the idea that they could be dead tomorrow.  This may be because of busy lives, with jobs, and kids, and obligations, and hobbies.  It might be because they are still young, and healthy, or believe themselves to be healthy, and for many people, that patina of the invincibility of youth might not lose its luster until middle-age, and its aches and pains that don’t go away, or the sudden loss of former classmates and peers injecting the inevitability of death into the forefront of their thinking.  After talking with several long-time life insurance salespeople I know, I tend to believe that there is something to this perspective.

When middle-age comes, some react by retreating farther from the idea of estate planning, and always seem to find reasons to procrastinate and not make decisions, sometimes to the consternation of their spouse, who may have a newfound desire to address these issues, if only to find a measure of peace in knowing that there is a plan, and with it, the comfort of knowing that they will not be at the mercy of statutory schemes which might not reflect the promises and expectations underlying their relationship.

Others surrender to the knowledge that life always ends, and that sometimes, it is sudden, and unexpected.  I have observed that these people are often motivated a maturity and a deep enough love for their families to want to make that time as easy as possible, and perhaps also to leave a legacy for the future.

Fear About The Cost

As a now middle-aged person with two kids of my own, I understand the reluctance to agree to have an attorney sit down and prepare a set of documents at a cost of hundreds of dollars an hour with apparently no cap the eventual cost.  One of the wonderful contradictions about estate planning is that while every time I draft someone’s documents, those documents are unique, because they are tailored to their situation and their desired outcome.  But. in most cases, I also know exactly how much it should cost, because the means of getting there is often substantially similar to others I have drafted.  Still, it doesn’t really matter how you explain this to a client, because they understand that they might have the one set of documents that takes longer, and if you quoted a range, their memory will always gravitate toward the low end.  Recently, after years of consideration, I made the decision to offer flat fee estate planning documents for “simple” estates…a circumstance that I discuss thoroughly with clients after reviewing their particulars, because sometimes they believe their estates to be “simple”, when they really aren’t.  The fact is, after considering it, the fee structure works out to what the client probably could have expected to pay for me to prepare the documents on an hourly basis, but I also understand how the certainty of knowing exactly what they are going to pay can be a selling point.  Every now and then, I will get someone who believes that the cost for preparing “simple” or modest estate plans is still too much.  This is an objection that I understand, and it is why I often try to put it in perspective.  I recently had a brake job done on my car.  It was something that needed to be done, and I did it because it had a tangible benefit not only for myself, but for my wife and children.  Getting your estate planning done is something that you would do for the same reasons, and the cost was actually pretty close to being the same.

For people who have more complex estates, the costs will be greater, and flat fees aren’t necessarily an option.  But there is usually more at stake, and not planning accordingly can mean paying taxes that might have otherwise been avoided (and the need to sell assets in order to pay those taxes), and an end result that wasn’t what anyone wanted, along with the insult of greater than average probate costs incurred in the injury of that conclusion.  In these situations, I generally find that the clients understand that the cost is a legitimate expense of getting their affairs managed properly.

Struggles With Family Conflicts and/or A Desire To Be “Fair” With All of the Children

This is the obstacle that I have the most empathy for, probably because I have children of my own, and until I did, I couldn’t really understand the old saying “You love all your children equally, but you love each one of them differently.”  I have spent countless hours with parents who struggle with sussing out how to be fair with each child, while being keenly aware of the strengths and weaknesses of each.  This is a dilemma made more difficult for parents who own businesses, because often, there may be one of more of the children who have no interest in the business, but that is where the bulk of the wealth of the family is centered, and one or more of the children have an active interest and role in the day-to-day operations of the business.  These are situations which require the attorney to present several options to the parents, and to help the evaluate each one before deciding on one.

Sometimes, I see parents struggling with how a child is living their life.  It might be an issue with the child being a spendthrift.  It might be that the parents deeply disapprove of the child’s spouse.  It might be a history of conflict with the child, that may or may not include some violent episodes.  It might be alcoholism or drug use.  It might be the child’s sexual orientation.  Any one of these can cause a great deal of anguish for parents who are struggling to finalize estate plans.  I’ve heard the pain in a parent’s voice when they describe the reason why they are struggling with trying to treat a child equally with the rest of their children.  Sometimes, I can help them feel a little better about that burden, by offering an option whereby a more responsible sibling can be made trustee of the spendthrift’s share, or through the creation of a testamentary trust which will keep the addicted child from receiving a lump sum which will be lost in a binge which may also take their child’s life.  I have shared the agony of parents who have disinherited children because of conflicts or irreconcilable differences, which the parties have been unable or unwilling to resolve.  And I have come to understand that even for the ones who don’t appear to have struggled at all with such a decision carry the weight of that decision as a private wound.

One of the many lessons I have learned in years of practice is that everyone should have an estate plan, not only to deal with their own death, but to make sure that someone they trust has the ability to make medical and financial decisions on their behalf if they become temporarily or permanently disabled.  The nature of any of the contingencies that a decent estate plan would address are usually the kind for which people can find reasons to procrastinate, but if deciding for yourself isn’t reason enough to take care of this important task, providing the peace of mind of an actual plan for your loved ones should be.


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Planning Prevents Probate Problems

There are some things in life that you don’t get to “do over”.  Estate Planning can be one of those things.

I understand that people are reluctant to consult with attorneys because they are concerned about the cost.  And the internet has made us all experts in things we know nothing about (and I am sometimes as guilty of this as the next person), but as a friend and colleague of mine is fond of saying “Law is not a DIY project.”, and nowhere is this more true than in the area of estate planning.

In over a decade of practicing law, I have gotten to deliver the bad news to surviving spouses, adult children, and even grandchildren that their recently deceased loved one’s brilliant idea to save money by finding a form Will on the internet will instead cost them money, and in some cases, ends in a much different result than intended.  That is one of the things about my job that is not much fun.

I recommend that everyone has a Will, and that they have an attorney help them prepare it.  I don’t care if you’re single with no children.  I don’t care if your children have grown, and your spouse is deceased.  I don’t care if you have children, grandchildren, and great-grandchildren.  If you own anything, you should have a Will, because even if you don’t own real estate, and your estate is small enough to dispose of with an Affidavit of Successor, you should have a Will, if only to make it clear to your friends and family who you want to have in charge and who you want to inherit your possessions.  But if it is worth doing, it is worth doing right.  Washington doesn’t have complicated rules regarding Wills and Codicils, but failing to satisfy the requirements set forth in the statutes may result in a document that is invalid, or that has to be authenticated, sometimes years after the fact, before a Court will admit the Will to the probate. And if your Will is invalid, then your estate will be distributed according to statute, rather than the way you intended and set forth in the Will.

I understand that cost is an issue for people.  I am sensitive to this concern.  But I’ve also had to sit in a conference room with grieving family members and explain that the Will that someone got on the internet is invalid, and because of statutory succession, a family member that wasn’t intended to get a portion of the estate will now inherit a share, and that the probate process itself is going to be longer and more expensive because without a Will, the Court will be involved with every decision the Administrator will make.   And because many people make a Will, and never again think about it, there is often no “do over”, because once the Testator dies, the Will cannot be changed.  If you love your family enough to plan ahead, please, love them enough to do it correctly.

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Always Learning…

I was helping out on the grounds at church this morning, and my pastor and I got talking about the things that school doesn’t teach you about either of our professions.  And I told him that one of the things about doing estate and probate work is that I bring clients face to face with their own mortality.  But the lesson they didn’t teach in law school is that they also bring me face-to-face with mine.

You expect that you will deal with people dying in this line of work, but nothing prepares you for how you feel about it when you actually liked them, or came to consider them as friends.  Or how you’ll feel when you watch their kids squabble over what was left behind, and end up squandering the estate left to them with love, and the hopes that it would be a blessing, rather than a curse.  It isn’t much of a legacy, and there have been times when I have been glad that some of these clients and friends didn’t live to see what knuckleheads their children turned out to be.

It isn’t always doom and gloom.  I’ve seen some remarkable acts of kindness and reconciliation, some recognized as such, and some not so much, but it helps me to maintain the perspective that some people can’t help it.  And in some cases, Mom and Dad knew, and planned accordingly.

Being an attorney, you get used to keeping people’s secrets, and when it comes to family, some of them are doozies.  But when you see the effect of some of these secrets up close, you realize that they aren’t really secrets at all, but just the individual manifestations of problems that some people want to pretend society doesn’t have, or that society is capable of “fixing” by itself, with yet another law, or regulation, as if addressing the behavior is the same thing as addressing the cause of the behavior.   But then, if law school taught these things, maybe our professional role would be much more about counsel than it would be about law, and there are days when I’m not so sure that some members of our tribe are equipped for that, either.  But that is an observation for another time.

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Thank You Very Much, Your Honor. May I Have Another?

When I first started practicing law, I worked at a firm where 1/3 to 1/2 of my practice at any given time was family law.  One of the cases I got was a post-secondary educational support motion.  In the state of Washington, we embrace the fiction that going to college makes people smart and employable, so even if a non-custodial parent pays their child support until their kid is 18, they can still be forced under some circumstances to contribute to their children’s college education.  One of those conditions is that the child achieves and maintains a certain grade point average.

My client was the non-custodial parent, and had been unemployed for a long period, despite having gone through job retraining.  The ex-spouse, who brought the motion for contribution, was a teacher.  The kid, despite being the spawn of an educator, was dramatically underachieving at the local community college.  We tried to get the transcript, but were not having any luck.  Finally my client got the kid’s password, and printed off the transcript that proved the kid was NOT making the grade.  I had my defense.

We showed up on the date of the hearing, and we walked into a packed court room.  The Commissioner that day was a pro tem (meaning that it was a practicing attorney who was substituting).  I wasn’t alarmed, because I had argued motions before him before, and believed him to be fair.  What I hadn’t considered is that when the adjudicator is also an advocate, sometimes the advocate wins.

We were the second case to be heard, so the court room was still packed.  My adversary made his case, and then it was my turn.  I reminded the court of the GPA requirement, and passed a copy of the transcript to the Commissioner and opposing counsel, pointing out that the “student” wasn’t a good student, and that perhaps their time might be better spent asking “Do you want fries with that?”  My adversary looked deflated.  I watched from the corner of my eye as he kept stealing glances at the transcript.  I finished my argument, convinced that my client was going to prevail.  My opponent said nothing.

It was quiet as the Commissioner looked down at me over his glasses and addressed me.  “Counselor,” he said, “I notice here at the bottom of this transcript that it says “Unofficial Copy”.  Do we have a hearsay problem here?”

My opponent perked up, his case revived by the person who was there to judge it, not argue it for him.  “Your honor, I OBJECT!  Hearsay!”

I looked around the courtroom.  My client did the same.  The child was not present, so I couldn’t get their testimony to authenticate it.  I was trapped.  My opponent had won.

As I packed up my folio, one of the old-timers sitting immediately behind the bar leaned forward and said “Tough Break, Kid.”
I looked at him and replied “What the hell was I supposed to say?  Gee, your honor, thanks for making my opponent’s argument for him.”?  He just chuckled and said “Sometimes, there’s nothing you can say.”

Sometimes, it doesn’t pay to get out of bed.

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A Plague of Pro Ses

When I was still a brand new baby lawyer, I wrote a piece about the unexpected things that happen in the practice of law that they don’t teach you about in law school.  These are the kinds of things that used to stress me out.  Now I just try not to laugh out loud.  Sometimes, I fail.  Case in point:  The two counties I do most of my practice in have gone to e-filing almost every civil matter, which means that there is very little that we as lawyers get to present in person to the judges anymore.  New probates are one of the exceptions to this, and I go to court for all the probate matters in our office.  I enjoy the chance to sit in the Commissioner’s Court and listen in.  Sometimes the matters are entertaining, sometimes they are instructive, but most of the tim, they serve to remind me why I don’t want to become a Court Commissioner, despite the fact that the job comes with a gavel, a nifty black robe, and a nice salary.  That was the case on my latest trip, although it was also entertaining.

It was a Tuesday Morning, and the court room wasn’t very full.  I didn’t anticipate a long wait, so I sat down to wait.  There were two attorneys addressing the court in what I presumed was a contested probate, given the nature of their presentation, but they appear to have hashed out a deal before the Commissioner could do it for them.  Then the Commissioner sat waiting for a few minutes, looking bored, before an attorney who reminded me of a taller Stanley Tucci came in, and told the Commissioner the matter was ready.  It was a show cause hearing for an eviction.  The tenant was representing herself, and the attorney seemed none too pleased about it.  He laid out the framework of the deal which had been reached, but it appeared that the Tenant was now having some buyer’s remorse.  The attorney apologized to the court, and stated that he thought that after two hours of negotiation with the Tenant’s [limited representation] counsel with the Housing Justice Project attorneys, he thought they had a deal, but that they Tenant now had a concern that one of the terms, a waiver of notice of any hearing if she didn’t comply with the terms, violated her right to due process.  As the attorney tried to ask for a Writ of Restitution since the deal was not palatable to his client without that condition, the Tenant started to talk to the Commissioner about the details of the negotiation.  She went for about a minute, until the attorney objected based on [Evidence Rule] ER 408, which renders statements made in negotiation inadmissible.  The Commissioner upheld the object, and then let the Tenant continue to talk.  After another 3 or 4 minutes, the attorney interjected “That’s not what we agreed to, and it was never discussed.”  I looked up.  The Commissioner looked over at him.  He said “Do you want to know what was said?”  The Commissioner opened her mouth, but before she could say anything, he said “Well!  I guess I just overrode my objection, didn’t I?” 

I laughed out loud.  I couldn’t help it.  Thankfully, I wasn’t the only one, just the loudest one.

The attorney proceeded to set the record straight, and then made a pitch to accept her payment if he could consolidate a few procedures that are separate according to statute, if he had to continue with eviction proceedings within the next twenty days.  I could see that he was struggling with trying to save his client’s money because of the likelihood that he would soon be back, again seeking an eviction.  At that point, the Commissioner looked at him and said “Counselor, I’m not sure by what authority I would be able to grant you the relief you seek.”  He responded, “I’m not sure either, your honor, but I’m equally unsure by what authority the Tenant got testimony about negotiations with her counsel admitted on the record here, either.  I just thought that as long as we were going down that road, we may as well try to salvage something for our efforts.  I guess I’ll have to step out and call my client and ask them what they want to do.” 

I laughed out loud again.

The attorney and the tenant stepped out into the hall, and again, there was a pause while the Commissioner looked bored, and waited for the clerk to give her the next set of pleadings which happened to be mine.   While I had laughed at the absurd exchange, I realized that this was yet another problem created by our profession’s good intentions.  I have been told by a few old timers that before we started redirecting money for the representation of indigents, that getting a deadbeat who owed you rent out of your space was no big deal.  You served the notices, you filed the papers, you went through the abbreviated proceedings, the tenants either left on their own, didn’t show up, allowing you to get your order, or they would show up, tell their incredibly sad stories, and THEN you got your order.  Now, with a professional limited representation rule, and funding for attorneys, the Tenants come to court, sit down with someone who represents them for the purposes of negotiation ONLY, who try to find ways to make sure you don’t leave with the order that helps your client stop their financial bleeding.  Not representing them in court means that the Commissioner can’t make their lives uncomfortable for not sticking to the deal that they just spent an hour or more of the landlord’s attorney’s time negotiating.  The Tenant is instead a pro se, representing themselves for purposes of the hearing, and often getting more process then they are actually due, so that no one can allege that the whole process is “fundamentally unfair”.  Given that there are quite a few pro ses in Commissioner’s court daily, the end result is greater cost for represented parties, because more the attorney’s time is spent, and the Commissioner has to listen to every sad story and excuse known to man.  I’m not sure how they can do that day in and day out and not just lose it.  And in this case, I suspect it was why the Tenant kept talking after the objection was made and upheld. 

I have been in positions in the past where the other party represented themself.  It was the owner of a corporation who did not hire an attorney to represent his company in the matter.  (In Washington, owners of closely-held corporations are not allowed to represent the corporation in court; they MUST hire an attorney.)  Naturally, this created its own set of problems.  In this case, I had the gentleman served (he was the Registered Agent), and he responded to me with a letter.  I did not receive an Answer, and naturally, this lead to the question of whether or not anyone had actually appeared on behalf of the corporation. (It was an out-of-state corporation, by the way).  I waited the longer prescribed period for him, or anyone to submit an Answer, and when I didn’t receive one, I noted a Default Judgement hearing.

On the hearing date, I showed up, and no one appeared on behalf of the corporation.  The court noted on the record that it had received only the pleadings I had filed.  I disclosed to the court that I had received a letter from the owner of the company, but no Answer, nor had any attorney provided me with a Notice of Appearance.  The judge asked me by what right I had scheduled a Default hearing.  I reminded the Judge of the caselaw that very clearly requires that corporations be represented by counsel in Washington.  I then told him that I had checked, and I didn’t find the corporation’s owner in our online directory of attorney’s.  I told him that for that reason, despite the fact that we have caselaw on “unofficial Notices of Appearance” that would have prohibited me from scheduling a Default hearing had the letter been sent to me by an attorney representing the corporation, I did not believe that someone who is not legally entitled to represent the corporation may nonetheless appear and be entitled to notice on the basis of such a letter.  The Judge disagreed, and ordered that he be given notice of proceedings.

Irritated at the illogic of it, I complied, and noted another Default hearing, and gave him notice.  To my surprise, he actually showed up…without an attorney, of course.  We commenced, and the owner started to present his case.  I objected on the basis that he was not allowed to represent the corporation.  The Judge upheld it, but then told the owner that he could not let him represent the corporation, but that he should take the opportunity to talk with me, and negotiate a deal that would be more favorable than the judgment I was there to get.  I looked at my client, who indicated to me to go ahead, and we went in the hall, and wrote up an order that actually spared me from having to get my attorney’s fees approved by the court.  The owner signed, my client signed, and I signed, and we entered it.  When the owner didn’t comply, I went and got the order, which contained a judgment if the owner didn’t comply by the date which had come and gone, and entered the transcript in Superior Court, so that my client could take it to out-of-state counsel and execute on it.

The owner appealed!  Again, pro se, despite having the prohibition against it explained to him by the Judge.  I showed up on the hearing date.  The Judge asked the owner to start.  I immediately objected, pointing out that the law prevented him from representing the corporation, and that the appeal itself was not valid, as he didn’t have standing himself to make it.  The Judge asked “But counsel, isn’t the court allowed to let an owner represent a corporation if they make the request for permission to do so of the court?”  I responded “Yes your honor, but he did not do that in District Court, and it would be improper for you to entertain such a request now.”  The Judge said “I don’t know if it would be improper, but I suspect you would appeal if I did entertain it.”  I smiled.  “Yes your honor, I certainly would.”

Judgment was issued in my client’s favor, but the court denied my attorneys fees for the appeal.  Just more cost to the represented parties, and more of the court’s time wasted.

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