December 10, 2008

Nudge, Shel Silverstein, Smart, and Negotiation

I'm currently reading Nudge: Improving Decisions About Health, Wealth, and Happiness, by the U of C professors Richard Thaler and Cass Sunstein. I'll probably post a review later, but I found one part (on page 77) particularly interesting. The authors are using a Shel Silverstein poem called "Smart" as the basis for an example, and they ask the reader to Google the poem and read it before continuing in the book.

Why not just print the poem? The answer is in a footnote:

Silverstein had originally given Thaler permission to use the poem in an academic paper published in 1985... but the poem is now controlled by his estate, which, after several nudges (otherwise known as desperate pleas), has denied us permission to reprint the poem here. Since we would have been happy to pay royalties, unlike the Web sites you will find via Google, we can only guess that the managers of the estate (to paraphrase the poem) don't know that some is more than none.

There's a lesson here, for executors and anyone involved in a negotiation: you better know what the other party's options are. The people in charge of Silverstein's estate (this guy?) apparently didn't.

Posted by Joel A. Schoenmeyer | | Email This Post

Posted In: ADR - Probate , Alternative Dispute Resolution , Book Notes , Estate Plans of the Rich and Famous , Wills and Trusts

| Share
October 19, 2008

How Much Information Should the Executor Give?

It's always interesting when I'm facing the same situation in two different cases but from opposite perspectives. That's where I find myself with respect to the following issue:

beneficiary (child of X) has questions about the actions taken by executor (also child of X) before X's death, as an agent under X's power of attorney

The question is, to account or not to account? By which I mean, does the executor take the time to prepare an accounting of his or her actions as agent for the beneficiary? In Illinois, such an accounting is not required -- in order to obtain it, the beneficiary would have to file a citation action. But my preference, as an attorney trained in alternative dispute resolution, is to try to resolve court battles before they start. So, what's the harm in providing such an accounting, if it can actually allay the beneficiary's fears?

In my opinion there IS no harm, unless you are convinced that...

1. the beneficiary intends to start a court battle anyway; or

2. the beneficiary has acted unreasonably at other times, and you don't want to reward such behavior.

I guess these two points are related -- the executor has to make a cost/benefit analysis about whether it's worthwhile to provide the requested information. That means the beneficiary should strive to create an atmosphere in which there's a clear benefit offered to the executor for doing what is requested, and a clear detriment to NOT doing what's requested.

Posted by Joel A. Schoenmeyer | | Email This Post

Posted In: ADR - Probate , Probate Litigation

| Share
October 31, 2006

Negotiation and the Value of Reasonableness

It's easy to get worked up if you are involved in probate litigation.  Things tend to get very emotional.  There are cases where somebody involved -- a trustee or other family member -- has done something really evil.  But there are a lot more cases where emotions simply run high and the folks involved act like the other side is evil, even if they aren't.

Good probate lawyers aim to give their clients tangible success -- removing a bad trustee, getting the share of the estate they deserve, etc.  But some clients want intangible benefits -- "piece of mind," or "a sense that justice has been done," or "the knowledge that I 'won'."  I'm hesitant to get involved in cases where these types of intangible benefits are sought, mostly because what I'm supposed to do gets so convoluted.  It's also difficult to work with very emotional clients.  They tend to be all over the map -- first they want this, then they want that, then they want to do away with any negotiation and simply "sue the bastards."  That wastes a lot of time and money -- do you really want me to bill you at my ($200) hourly rate for listening to you rant about your "no good" sister?

I think in terms of money, and in terms of alternatives.  This comes from my training as a mediator.  If the question is "to settle or not to settle," then what's your BATNA (Best Alternative To a Negotiated Agreement)?  What's your WATNA (Worst Alternative To a Negotiated Agreement)?  I spend a lot of time explaining to my clients what will happen when or if we go to court.  Court does offer some benefits, but there are also the drawbacks (in terms of costs and time).

Of course, there are drawbacks to a negotiation as well.  You may not walk out feeling as though you "won."  You may feel like you shouldn't have been forced to compromise with the "devil" on the other side.  But if your goal is to bring a probate matter to a close, and to move on, then maybe negotiation will work for you.  Even if it means you have to let go of some of your vitriol.

Posted by Joel A. Schoenmeyer | | Email This Post | Comments (0)

Posted In: ADR - Probate

| Share
April 24, 2006

John Donovan's Estate of War, and Irrevocability

Saturday's Wall Street Journal featured a lengthy article about John J. Donovan Sr., described as "a wealthy technology consultant and entrepreneur."  The article details a lot of family intrigue, including allegations of sexual abuse by one of Mr. Donovan's daughters, and a shooting incident that was possibly masterminded by one of Mr. Donovan's sons -- or by Mr. Donovan himself.  The article is here, but available only to subscribers.

Is Mr. Donovan a disturbed, evil man?  Or are his children simply being greedy and taking advantage?  It's impossible to tell from the article, but one aspect of the dispute caught my attention:

In the early 1990s, Mr. Donovan established two trusts in Bermuda, naming his children as beneficiaries.  The trusts were designed, among other things, to shelter his wealth from taxes and to assist with estate planning, according to his lawyers.  Mrs. Donovan says her husband believed the money would be used to start companies and create wealth.  He wanted some of the money going to the kids, but most to charities, she says, although those goals were not incorporated into trust documents. The trusts were structured so that trustees in Bermuda had discretion over them, and Mr. Donovan's permission wasn't required for his kids to tap the money, according to lawyers for both Mr. Donovan and his children.  According to his lawyers, the trusts eventually contained more than $100 million in cash and securities. (Emphasis added)

Mr. Donovan apparently set up an irrevocable trust for his children.  Once set up, such a trust is irrevocable, which means you can't change it or revoke it.  If Mr. Donovan wanted to give "most" of the trust funds to charities, he could have done so before he signed the trust agreement.  He didn't. 

It may seem strange, but the word "irrevocable" tends to be a hard one for clients to grasp.  People who set up irrevocable trusts almost by definition have a lot of money and a fair amount of sophistication, but estate planners like to trade stories about clients who call and ask "how do I amend or revoke my irrevocable trust?"  The answer is, "you don't."

Posted by Joel A. Schoenmeyer | | Email This Post | Comments (0)

Posted In: ADR - Probate , Estate Plans of the Rich and Famous

| Share
March 16, 2006

ADR-related Blogs

As a part of my survey on probate mediation, I was planning a post on ADR (alternative dispute resolution) websites generally, with a focus on ADR blogs.  However, given that I'm new to the area of ADR, I thought it might be a bit silly (not to mention cheeky) for me to try to give an overview of the available resources.  Luckily someone with a lot of knowledge in the area -- Diane Levin of the excellent Online Guide to Mediation -- has prepared a directory of ADR blogs. Ms. Levin's introductory post on the topic is here; the actual directory can be found here.   Death and Taxes even gets a mention as being ADR friendly!

Posted by Joel A. Schoenmeyer | | Email This Post | Comments (0)

Posted In: ADR - Probate

| Share
February 22, 2006

Mediation in Estate Planning and Probate: A Survey (Part 2 - Court Links)

I'm compiling a survey of estate planning and probate-related mediation resources (mostly of the on-line variety), and will be posting the results here in the near future.  Here's my plan for this survey:

Part 1 (yesterday): Articles about estate planning and probate-related mediation (if an article is available on-line, you can click on the word "link" following the article citation to access it)

Part 2 (today): Links to court probate mediation programs

Part 3: Links to websites that relate to probate mediation

I view all of these parts as works in progress -- I'll be supplementing the lists as new items come to my attention.  If you think I'm missing a link, please let me know!

ARIZONA

-Maricopa County

HAWAII (pdf)

ILLINOIS

-Cook County

MICHIGAN

-Genesee County

-Oakland County (pdf)

NEW HAMPSHIRE

UTAH

WASHINGTON DC

Posted by Joel A. Schoenmeyer | | Email This Post | Comments (0)

Posted In: ADR - Probate

| Share
Forest Park, Illinois
708.358.1282

Subscribe

Subscribe to the blogs's ATOM feed Subscribe to the RSS feed
Add to your Google Home Page or Google Reader Add to your My Yahoo!
Add to your My MSN Add to your My AOL
Add to your My Feedster Add to your NewsGator
Add to your Bloglines Add to your News Burst
Add to your Rojo Add to your Pluck

Podcasts

Subscribe to our RSS XML

Joel Schoenmeyer Podcast Archives

Contact Us

Recent Entries

Chicago Legal Blogs

Legal Blogs