Who will get your bicycle?
Lester died last week. Cancer took him at 68.
I went to the funeral because he was a friend and a special client. "Special' because he taught me more about writing wills than I ever learned in law school.
Lester called my office six months ago, insisting on an immediate appointment. "Sure, come right over,' I said. "What's the problem?' Lester was a personal friend who had never consulted me about his legal affairs.
"I can't tell you now, but it's an emergency. I'll be there right away,' he said, and he hung up.
I was neither a criminal attorney accustomed to desperate calls from jailed clients nor a divorce lawyer used to sobbing visits after marital disputes. Mine was a suburban civil practice whose bread and butter was real-estate closings, wills and corporations. Still, every client thinks his case is an emergency.
Lester--dressed as always in Bermuda shorts and a polo shirt, his standard bicycling garb--walked into my office. "John, I just received some bad news,' he began. "My doctor called and asked me to come down and talk to him about the chest X-ray I had last week. There's a spot on my left lung, and you know what that means.' He stopped and handed me a rough draft of a will. "I need your help.'
I nodded understandingly and looked at what he had handed me. Lester's draft was short: "I leave all my property one-half to my wife and one-half to my children.' The second sentence was the clincher. "I give and bequeath to my son Lawrence my Raleigh International bicycle and one-half of my bicycle equipment; to my son Raymond I give and bequeath my Raleigh Super Course bicycle and one-half of my bicycle equipment.' Attached were two typed pages of stocks and bonds he owned.
Here was a man with a two-page list of stocks and bonds worth a half million dollars, and he devoted more space in his will to his bicycle than his money. It was Elvis leaving his guitar, Billy Graham his Bible and Henry Ford his first Model T.
I never saw Lester alive again, but I loved him for letting me prepare that will. Before then, I had looked upon wills simply as a mechanical means of passing on wealth--a routine workman's task calling for minimum thought from the lawyer. Lester caused me to see that a will is an expression of values--materialistic and other--a person has gained during his life and wants to pass on to the living. Part of a lawyer's job is to express these personal values in the will. Lester valued not only money but the health and enjoyment he received from bicycle riding. He wanted his sons to remember him by having his bicycles, and he also wanted them to keep the same values he lived by-- regular exercise and good health. This was the personal touch in his will, and it taught me to include a personal dimension in every will I draft.
With my new philosophy of writing wills came a new check list of items to cover with my clients. The standard ones were still there: 1) Whom do you want to receive your property? 2) Who should be named guardian of your children if they are minors when you die? 3) Whom do you want to be your executor? 4) Any charities you want to leave money to? 5) Will you have enough property for estate-tax problems--an estate of more than $175,000 for a single person, $425,000 if married. Added were questions like: 1) Do you have any items of personal value or meaning you want to leave to a special person? 2) Do you have any special messages or advice to give to someone?
The last questions cause clients to think about the opportunity to use their wills for more than a means of parceling out money. One of my favorite examples is a young advertising executive, anxious to be sure his children were properly cared for if he and his wife died prematurely. Young couples do not like to think about wills because it means focusing on the unpleasant and unfamiliar subject of death. However, losing a friend in a car accident made them realize they must consider such a possibility. We spent many hours discussing which relative should serve as guardian of the children. I advised someone geographically close so the children's school and friendships wouldn't be disrupted, or a person with children close in age to theirs. After outlining a lengthy will with guardianship and insurance-trust provisions, I asked about items of personal significance to include.
"My wine,' the husband shouted. The opening bequest in his will is a classic: "I give and bequeath my case of 1961 Chateau Mouton-Rothschild Magnum to my brother.'
I learned quickly that many clients will try to use a will to rule from the grave. After going through my check list with one man and exploring his options for using a will to influence people after his death, he put in the following clause: "$100,000 to my wife provided she does not remarry.' Another client insisted on this one: "I bequeath $25,000 to my grandson on his 21st birthday upon the condition that he never smoke marijuana or drink alcohol before that day and that he swear to my executor that he shall never do so afterward.'
I confess to some misgiving over such dead-hand control. However, these examples do not shock my conscience as much as a bequest of "$100,000 to my daughter provided she marry a white man of the Catholic faith.' (This clause was the subject of a lawsuit 15 years ago by the daughter who took a husband of another faith. She lost then but would win today, in my opinion, because of the law's greater emphasis on religious freedom.) I recommend using a will to influence rather than to control, though the line between the two is difficult to draw.
Many clients want to talk about avoiding probate. This term means leaving property in other ways than a will. These probate-avoiding devices consist of joint ownership, trusts and insurance. Each one is popular and advisable, even with a will. Discussing all of them with a client makes the lawyer an estate planner rather than a mere will writer.
The most common form of joint ownership is a joint bank account or joint ownership of real estate, with the words "as joint tenants with right of survivorship' after the names of the two co-owners. In the case of a bank account, money is available immediately to the other upon the death of one co-owner without having to go through probate. This arrangement averts delay in using the money and eliminates the fees of executors and attorneys charged when the account is probated through a will. The same result occurs with joint ownership of real estate.
The most common form of a trust is a bank savings account held by one person "in trust for' a second. The first person acquires the total right to use the money up to the point of death, and upon his death it becomes the property of the second person. Probate and its delays and fees are bypassed.
The wealthy have used trusts for all types of property for centuries. The reasons are simple--a trust allows control and use until death, makes property available to beneficiaries the instant after death and causes no publicity, because trusts do not become part of the public record like wills. In the past 20 years, trusts have become increasingly popular with the middle class for the same reason the rich have always liked them--the avoidance of the fees, delays and publicity of probate.
Notwithstanding the popularity of trusts, the will is still the basic document of estate planning in my practice for several reasons.
One is that it can be changed, amended or revoked at any time. Another is that the fee is normally small--$50 to $500 as opposed to a minimum of $1,000 for a trust. And finally, because even the high priest of the antiprobate movement, Norman Dacey, recommends a will to cover things you cannot put into a trust or other probate-avoiding device. For instance, guardianships for minor children can only be placed in a will; money for death in a car or an airplane accident can only be received by an estate (the items the will governs); and only the will can direct whether estate taxes are to be paid completely out of the "probate estate' --that passing under the will or to be shared by the recipients of the "nonprobate estate' (the recipients being those receiving joint property, trust property and life-insurance proceeds.)
I prefer the will mainly, however, because of what Lester taught me-- that a will can do more than simply pass on wealth to the next generation. Properly thought out, it can put a personal dimension into estate plans. A will, in other words, can be a means of making a final, special statement to special people--a way to leave something that can mean more than money.
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|Author:||Ritter, John A.|
|Publication:||Saturday Evening Post|
|Date:||Jan 1, 1985|
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