Death and Taxes Blog

To Kill A Mockingbird was originally published on July 11, 1960, so there has been a fair amount of hoopla surrounding its 50th anniversary. This has included (among other things) the publication of Scout, Atticus & Boo (an examination of the book's cultural and personal impact via interviews with a number of interesting, thoughtful people - and Tom Brokaw).

It's been a few years since I read the book, so I decided it was time for a revisit. (Another reason to revisit: I was thinking about whether it would be appropriate to read to my 8-year-old. It isn't.)

What is there to say about the book that hasn't already been said? Not much, but it is interesting to note that Atticus Finch -- in addition to practicing criminal law by defending Tom Robinson -- is an estate planner. The book alludes to this twice:

The family's friend Miss Maudie Atkinson remarks that Atticus "can make somebody's will so airtight can't anybody meddle with it." (Chapter 10)

The family's miserable neighbor Mrs. Henry Lafayette Dubose called Atticus to make her will just prior to her death. (Chapter 11) At the time she made the Will, Mrs. Dubose was a morphine addict (an addiction she broke prior to her death), which raises a couple of interesting inter-related questions:

1. Does a morphine addict have the necessary capacity to make a Will?

2. If you were to "climb into [Atticus's] skin and walk around in it," would you agree to draft a Will for her, given her addiction?

Today's New York Times Magazine has an article about Stieg Larsson, whose three novels (The Girl With The Dragon Tattoo, The Girl Who Played With Fire, and The Girl Who Kicked The Hornet's Nest) have become a literary sensation.

Mr. Larsson died in 2004, before they were published -- he was survived by his companion, Eva Gabrielsson, with whom he lived for over 30 years. So who reaps the benefit of his posthumous success?

Larsson died without a will. Like a great many Swedish couples, he and Gabrielsson never married... and they had no children.... Larsson's father and younger brother... got everything.

There are a lot of bad feelings between Ms. Gabrielsson and Larsson's father and brother, which may or may not be about money or literature or both (or other things).

Interestingly enough, Mr. Larsson did leave a document regarding his wishes, in the form of "a letter Stieg wrote before leaving for Africa in 1977 [before he met Ms. Gabrielsson] and sealed in an envelope marked: 'Contains my will. Do not open before I die.' This document was never witnessed and has no legal validity, which is probably just as well, because it leaves everything to the Socialist Party in Umea." Mr. Larsson's brother says he urged him to make a Will, and notes that "[h]e had 25 years to change [the above document]."

The message should be clear: put your wishes in writing.

I was the high bidder on a Kindle at my church's recent silent auction fundraiser. I have to admit that it's been fun playing around with it. I'm still getting used to not having physical books in my hand, but the Kindle has given me the opportunity to read longer works without having to lug them around. For instance: Boswell's Life of Johnson, which I've always wanted to tackle. (If you are also a Johnson fan, you may want to check out "his" twitter feed, here. Very funny.) It's 1408 pages, but it fits just perfectly -- and downloaded very quickly -- on my Kindle.

I'm just getting started on the book (I think -- my biggest objection to the Kindle so far is the lack of pagination), but came across an interesting comment from Boswell. He spends part of his introduction criticizing the other "lives" written of Samuel Johnson, especially the one by Sir John Hawkins:

[Hawkins] being appointed as one of [Johnson's] executors, gave him an opportunity of taking possession of such fragments of a diary and other papers as were left; of which, before delivering them up to the residuary legatee, whose property they were, he endeavored to extract the substance. In this he has not been very successful, as I have found upon a perusal of those papers, which have been since transferred to me.

So we learn a couple of things from this passage:

1. Apparently Boswell was Johnson's residuary legatee.

2. Hawkins, in his capacity as executor, first used property of the estate for his own benefit before turning it over to the beneficiary. That seems like a definite no-no, and a breach of fiduciary duty. An executor's duty is to put a beneficiary's interests above his own, but that didn't seem to happen here. That being said, who knows whether we can trust Boswell regarding the facts. Boswell seems somewhat blinded by hatred -- for instance, he says that Johnson barely knew Hawkins. ("... [D]uring my long intimacy with Dr. Johnson, I never saw [Hawkins] in his company, I think but once, and I am sure not above twice.") But if this is true, then why did Johnson name Hawkins as an executor in the first place?

The holiday break gave me a chance to finish Audrey Niffenegger's Her Fearful Symmetry, which I mentioned in my last post. There are a few references to probate and estate planning in the novel, but this is my favorite -- it's a quote given by one of the main characters (Robert) while he gives a tour of London's Highgate Cemetery (which plays a major role in the book).

"Before modern medical technology, people had a difficult time determining when someone was really dead. You might think that death would be pretty blatant, but there were a number of famous cases in which a dead body sat up and went on living, and many Victorians got the jim-jams just thinking about the possibility of being buried alive.

Being a practical people, they attempted to find solutions to the problem. The Victorians invented a system of bells with strings attached that went through the ground and into the coffin, so if you woke up underground you could pull on your bell till someone came to dig you up. There's no record of anyone being saved by one of these devices. People made all sorts of odd stipulations in their wills, such as asking to be decapitated as insurance against an undesired revival."

A Will with a decapitation provision? Excellent!

I enjoyed Audrey Niffenegger's first novel, The Time Traveler's Wife. Haven't seen the movie -- looks a little too sappy -- but the book was great.

Right now I'm working on Ms. Niffenegger's newest, entitled Her Fearful Symmetry. I've just started it, but the novel appears to be a riff on the old idea of "stay in a haunted house overnight to get an inheritance." Two American twenty-somethings (twins) get the following letter (which I have edited) from the attorney for their English aunt, who has passed away:

Dear Julia and Valentina Poole,

I regret to inform you of the death of your aunt, Elspeth Alice Noblin.... Last September, knowing that her illness would soon result in her death, she made a new will. I am enclosing a copy of this document. You are her residuary legatees; that is, she has bequeathed you her entire estate, with the exception of a few minor bequests to friends and charities. You will receive this inheritance when you reach the age of twenty-one.

The bequest is given to you with the following conditions:

1) Ms. Noblin owned an apartment in London.... She bequeathed this apartment to you on the condition that you both live in it for one year before you may sell it.

2) The entire bequest is given on the condition that no part of it shall be used to benefit Ms. Noblin's [twin] sister, Edwina, or Edwina's husband, Jack (your parents). Also, Edwina and Jack Poole are forbidden to set foot in the flat or inspect its contents.

Sounds intriguing, doesn't it?

The headline of this post makes the English major in me very happy. Here's the story -- this morning Roger Ebert posted a link to this 1957 letter (from J. D. Salinger) on Twitter. (BTW, you can find me on Twitter here, although only about 20% of my tweets are estate planning or probate-related. You can find the more entertaining Mr. Ebert here.)

Anywho, the interesting thing (to me as a probate attorney, at least) is this part of the letter:

I toy very seriously with the idea of leaving the unsold rights [to The Catcher in the Rye] to my wife and daughter as a kind of insurance policy. It pleasures me no end, though, I might quickly add, to know that I won't have to see the results of the transaction.

So, Mr. Salinger might leave it up to his family to decide if a play or film will be made from his most famous work. I wonder if his opinion on this has changed over the last 52 years?

Two final notes:

1. The letter is evidently for sale now. Asking price: $54,000!

2. The website on which the letter is featured (Letters of Note) is a real gem.

I just finished reading Meryl Gordon's book Mrs. Astor Regrets, and highly recommend it. The story should be interesting to anyone who likes a lurid tale that's well-told, but it has special interest to those interested in estate planning and related fields.

Mrs. Astor is, of course, Brooke Astor, who passed away in 2007 at the age of 105. Mrs. Astor was born Roberta Brooke Russell, but married Vincent Astor of THE Astors (her third and final husband) in 1953. Interestingly enough, Vincent received his fortune as a result of a famous event: his father, John Jacob Astor IV, went down on the Titanic (he was even depicted in the movie). While Vincent's father's second wife survived, as did the son she was pregnant with, a premarital agreement left most of John Jacob Astor IV's estate to Vincent.

Vincent and Brooke were married less than six years, but Brooke inherited most of his property. Brooke then turned herself into a beloved philanthropist with lots of famous friends.

But how was Brooke as a mother to her only child, Anthony Marshall (born of her first marriage)? Not so good, according to the book. Anthony was kept at a distance, especially after he left his second wife for a woman named Charlene Gilbert, who was married to the priest of the church Brooke attended at her summer home in Maine.

Brooke carried on very well for a very long time, but began to decline somewhere around her 100th birthday. What happened then is all too common, in families rich and not-so-rich: a battle over access to Brooke, and to her money. Brooke had an estate plan favoring Anthony as well as certain charities; Brooke became close to one of her two grandsons, Philip. Then, all of a sudden, Brooke seemed to be cut off from her old friends, and she signed a series of new estate planning documents -- favoring Anthony much more than before.

Initially, the controversy surrounding Brooke and her son focused on whether he was caring for her properly. (You may remember allegations that Brooke was forced to sleep on a urine-stained couch.) Philip and Brooke's old friend Annette de la Renta (Oscar's wife) were successful in having Annette named as Brooke's guardian. That caused a rift between Anthony and his sons, and things then got worse as the focus turned to the estate planning documents, which seemed rather fishy. The issues here are as follows:

-did Brooke have capacity to execute the documents? (Anthony said she was competent, but had written a letter years before discussing her Alzheimer's Disease in depth.)

-did Anthony procure the documents via undue influence? (There were allegations that men in suits were "forcing" Brooke to sign certain documents, and it's unclear whether the documents were actually Brooke's idea.)

-did Anthony procure the documents via fraud? (There is evidence that Francis X. Morrissey Jr., a disgraced lawyer with ties to Anthony, forged Brooke's signature on one document.)

So, as you can see, lots of estate planning, probate, and guardianship-related issues to chew on. Even some involving professional responsibility (with respect to Francis's conduct, and the conduct of another attorney, Terry Christensen, who prepared a document for Brooke when he likely knew that she was incompetent). I previously blogged about some of this here and here.

Interestingly enough, although Brooke has been dead almost two years, the battle over her estate is just beginning. And the battle has now carried over into the criminal arena, as Anthony is currently on trial and charged with stealing from his mother. After that trial, a Will contest trial will begin over certain estate planning documents signed by Brooke.

The Wall Street Journal has recently mentioned one movie and one book that relate to estate planning and probate.

1. All of Me. Mentioned by Joe Morgenstern in a sidebar in this column. Here's part of Mr. Morgenstern's summary:

[Lily Tomlin] plays Edwina, a dying millionaire spinster who arranges to have her soul transplanted into the body of a beautiful young woman. [Steve Martin] plays Roger, an attorney who's supposed to revise her will. When she dies prematurely, in the midst of great confusion, something goes wrong and she ends up sharing Roger's body in a crazed kind of joint tenancy. Though the film is imperfect, the physical comedy is often sublime.

2. Honestly Dearest, You're Dead. This is a novel by Jack Fredrickson, reviewed here by Tom Nolan. From the first paragraph of Mr. Nolan's review:

Vlodek "Dek" Elstrom is not a commanding figure. A divorced, disgraced private investigator who hit bottom after his reputation in Chicago was torpedoed by cunning crooks, Elstrom is living in an unheated stone turret in Rivertown, Ill. So why has he been named the executor for the modest estate of a dead stranger in a small town in Michigan?

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.

I wrote recently about the issue of "heir property" here. Next week I start my second business school class, Advanced Economic Analysis with Professor Kevin Murphy. This is supposed to be a VERY intense class, so during my month break between quarters, I've been reading all of the economics information I can get my hands on (which includes trying to educate myself about our current financial crisis). The book I'm currently reading is entitled The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives, by Michael Heller. Professor Heller is a law professor at Columbia (he actually taught at the University of Michigan Law School while I was there, although I never had a class with him). His book is about what he refers to as the "tragedy of the anti-commons," meaning the problems that arise (underuse, mostly) when property is owned by too many different people or entities.

I'm only about half-way through the book, most of which has focused on drugs, and the inability of researchers to move forward with new discoveries because such discoveries may involve many different patents. If just one of the patent holders holds out, the research can be derailed -- hence the gridlock of the title. On pages 121-5, Professor Heller actually brings up the issue of heir property, and how the gridlock as a result of multiple owners has caused farm ownership by black families to drop from about 1 million (in 1920) to 19,000 today.

Next week I'm hoping to post my review of Christopher Buckley's new novel, Supreme Courtship. I recently mentioned Mr. Buckley's novel Boomsday in this blog, and his publisher was nice enough to send me an advance copy of his new work, which will be released September 3rd. I haven't found any probate or estate planning-related passages, but thought people might be intrigued by the plot:

A desperate politician decides (on the spur of the moment, after meeting her only once) to select an attractive, down-to-earth yet inexperienced woman for an important role in American government.

Does that sound like any situation in current American politics?

In Supreme Courtship, the role in question is Supreme Court justice, and woman is America's most popular TV judge, Pepper Cartwright (sort of a cross between Oprah and Judge Judy, but with the looks of Julia Roberts, from how she's described).

I first became a Christopher Buckley fan in 1995, when I read Thank You For Smoking. Mr. Buckley is a satirist of the first order, and usually turns his eye to Washington politics (his father is William F. Buckley). I recently picked up a copy of Mr. Buckley's most recent novel, Boomsday, which focuses on the coming entitlement crisis. The main character, Cassandra Devine, is a blogger(!) who suggests legislation encouraging Baby Boomers (also referred to here as "The Ungreatest Generation") to take part in "voluntary transitioning" (i.e. suicide). What's in it for the Boomers?

[Ms. Devine's mentor, Terry Tucker:] "You offer people tax breaks. To kill themselves. At age seventy."

[Ms. Devine:]"More if they Transition at sixty-five. Yes, a package of incentives. Free medical. Drugs -- all the drugs you want. Boomers love that kind of pork. The big one is no estate tax. Why leave it to Uncle Sam when you can leave it to the kids? That'll get the kids on board. Terry, listen to me. I ran the numbers. By my calculations, if only twenty percent of seventy-seven million Baby Boomers go for it, Social Security, Medicare, Medicaid will be solvent. End of crisis. Tell me that's not worth debating."

I'm rereading Mark Twain's The Adventures of Huckleberry Finn, which is great fun. In Chapter 25, Huck and Jim's traveling companions, the scam artists known as the Duke and the Dauphin, impersonate the brothers (Harvey and William) of a recently deceased rich man named Peter Wilks. But before that, in Chapter 24, we learn a little about Peter Wilks' estate plan:

"[Peter Wilks] most desperately wanted to see Harvey -- and William too, for that matter -- because he was one of them kind that can't bear to make a will. He left a letter behind for Harvey, and said he'd told in it where his money was hid, and how he wanted the rest of the property divided up.... And that letter was all they could get him to put a pen to."

As I've said before, hand-written Wills are perfectly fine in Illinois, but all Wills have to be witnessed by at least two witnesses. If a hand-written letter like this was found in the case of an Illinois decedent, it would not be considered a valid Will, even if it clearly indicated the decedent's wishes. Why? Because the stakes are so high (involving the distribution of all of the decedent's property), the proof required for a valid Will is equally high.

I've talked before -- most recently, here -- about executors who don't obey the wishes of decedents, and refuse to burn their works. Vladimir Nabokov's case (which involves this scenario) has been in the news lately, in a two-part series in Slate entitled The Fate of Nabokov's Laura:

Part 1

Part 2

I recently finished reading Philip Roth's The Ghost Writer, which is the first book in his Zuckerman trilogy (or trilogy and epilogue, as I guess it's now known, since it contains four books and Roth evidently doesn't like the word "quartet"). It's a short but engaging work about a young novelist (Nathan Zuckerman) who pays a visit to a very well-respected older novelist (E.I. Lonoff).

Interestingly enough, one of the central conflicts of the book involves a fight between Zuckerman and his father over one of Zuckerman's short stories, which focuses on a will contest. According to Zuckerman, the story was based on the following facts:

A great-aunt of mine, Meema Chaya, had left for the education of two fatherless grandsons the pot of money she had diligently hoarded away as a seamstress to Newark's upper crust. When Essie, the widowed mother of the twin boys, attempted to invade the trust to send them from college to medical school, her younger brother, Sidney, who was to inherit the money remaining in Meema Chaya's estate upon conclusion of the boys' higher education, had sued to stop her.

Zuckerman's father objects to the story, on the grounds that it airs the family's dirty laundry and (more importantly) portrays Jews in an unfavorable light.

Not to take the fun out of the novel, but the whole fight over Meema Chaya's estate could have been avoided if she had clearly defined "education" to include (or exclude) graduate and/or professional school.

I'm working my way through Margaret Mitchell's Gone With the Wind right now -- it's so long, this may well be the last book I read this year. It's surprisingly good, though -- I was expecting a bit of a bodice ripper, but the writing is very solid, and quite evocative.

One thing we learn: trusts were around even in the Old South. This is from page 107 in the edition I'm reading (my mother's MacMillan second edition). It describes the strained relationship between Sarah Jane Hamilton (aka Aunt Pittypat) and her brother Henry, and the aunt and uncle of Scarlett O'Hara's deceased husband Charles, and Charles's sister, Melanie:

The insult had occurred on a day when Pitty wished to draw five hundred dollars from her estate, of which [Henry] was trustee, to invest in a nonexistent gold mine. He had refused to permit it and stated heatedly that she had no more sense than a June bug and furthermore it gave him the fidgets to be around her longer than five minutes.

We also learn the following:

Uncle Henry like Scarlett immediately because, he said, he could see that for all her silly affectations she had a few grains of sense. He was trustee, not only of Pitty's and Melanie's estates, but also of that left Scarlett by Charles. It came to Scarlett as a pleasant surprise that she was now a well-to-do young woman, for Charles had not only left her half of Aunt Pitty's house but farm lands and town property as well.

I'm becoming a pretty big Edith Wharton fan. I loved The Age of Innocence (the movie is pretty good too), and am now working my way through The House of Mirth.

The House of Mirth (which was published in 1905) focuses on Lily Bart, who is beautiful but relatively poor and 29-years-old, which means that she's running out of time to make an advantageous marriage. Ms. Bart is ambivalent about marrying, and about the social circle in which she travels -- part of her wants to find a wealthy husband, but another part of her wishes to simply be herself (perhaps with the not-so-rich but intelligent Lawrence Selden?). Ms. Bart's situation becomes precarious when she befriends Gus Trenor, the husband of her good friend. Mr. Trenor agrees to invest some of Ms. Bart's money, but it soon becomes clear that Mr. Trenor expects to be "paid" in some way for this favor. It also becomes clear that Mr. Trenor didn't invest Ms. Bart's money at all (instead he is making gifts to her, which is clearly inappropriate). Ms. Bart doesn't have the ability to return Mr. Trenor's gifts -- she's already spent the money. Even worse, Ms. Bart's cousin, Grace Stepney, has been talking to their wealthy aunt (Mrs. Peniston) about Ms. Bart's behavior. This talk comes in Chapter XI of Book One, and borders on undue influence (although Ms. Stepney is driven not by hope of inheritance, but by hatred of Ms. Bart).

Later in the book, Mrs. Peniston dies, and Ms. Bart hopes that a long-promised inheritance will alleviate some of her financial concerns. But at the reading of Mrs. Peniston's Will (in chapter IV of Book Two), Ms. Bart learns that -- except for one small gift -- "she has been disinherited" in favor of Grace Stepney. Ms. Stepney is to receive the residue of Mrs. Peniston's estate (the property remaining after specific gifts are made and debts and expenses are paid).

I'd be curious to find out when the practice of holding a formal "reading of the Will" died out. (I've never been asked to give such a reading, although I'd welcome the opportunity).

This was a Harry Potter weekend for my family -- taking our daughter to the festivities in and around Oak Park's Magic Tree Bookstore on Friday evening, and reading all 759 pages of Harry Potter and the Deathly Hallows.

When I last wrote about Harry Potter and probate, almost exactly two years ago (here), I disguised the identity of the decedent. I think by now everyone at all interested in the books knows that Hogwarts headmaster Albus Dumbledore died in Book 6, so I don't feel like I'm revealing too much by sharing that Chapter 7 of the Deathly Hallows is entitled "The Will of Albus Dumbledore." I won't disclose who the beneficiaries of Dumbledore's Will are, or what they inherit, but I do note the existence of the "Decree for Justifiable Confiscation," which gives "the Ministry [of Magic] the power to confiscate the contents of a [wizard's] will" in order to determine whether the wizard was attempting to pass on so-called "Dark artifacts." Apparently, the confiscation may only be done if there is "powerful" evidence that the deceased's possessions are illegal, and if the Ministry cannot produce such evidence within 30 days of the decedent's death, then the possessions must be turned over to the beneficiaries.

I've loved Donna Tartt's writing ever since I read this passage early in her 2002 novel The Little Friend. It introduces us to two sisters named Allison and Harriet Cleve (Harriet is the novel's main character):

Allison spent a lot of time with her great-aunts, on the weekends and after school.... What a good little cook, the aunts all sang. How pretty you are. You're an angel to come see us. What a good girl. How pretty. How sweet.

-----

Harriet, the baby, was neither pretty nor sweet. Harriet was smart.

From the time she was old enough to talk, Harriet had been a slightly distressing presence in the Cleve household. Fierce on the playground, rude to company, she argued with Edie [her grandmother] and checked out library books about Genghis Khan and gave her mother headaches. She was twelve years old and in the seventh grade....

This past week, laid up with sinus problems, I finally made my way through Ms. Tartt's first novel, The Secret History. I liked it almost as much as I liked The Little Friend. Both books are "thrillers," of a sort, although they take place in different worlds. The Little Friend takes place in Alexandria, Mississippi, while The Secret History is set at a fictional private college in Vermont. The Secret History is the story of six friends and classics scholars. Here, one of the six (Henry) is telling our narrator (Richard) about another of the six (Francis). And, interestingly enough (to me, at least), trusts play a part in the story:

[Francis] and his mother live off the income of a trust, as I expect you know, but they also have the right to withdraw as much as three percent of the principal per year, which would amount to a sum of about one hundred and fifty thousand dollars. Generally this isn't touched when it turns up, but in theory either of them can take it out whenever they like. A law firm in Boston serves as the trustees.... Francis had assured me that getting the money was a simple matter of going downtown and signing some papers....

But he wasn't back when he said he would be, and three hours passed, then four.... [Then] Francis burst in, half-hysterical. The money for that year was all gone, you see. His mother had checked out every cent of the principal at the first of the year and hadn't told him about it. It was a nasty surprise, but even nastier given the circumstances. [And, indeed, the circumstances are very nasty. -Joel] He'd tried everything he could think of -- to borrow money on the trust itself, even to assign his interests, which is, if you know anything about trusts, about the most desperate thing one can do....

While trusts that allow the beneficiary to withdraw principal are fairly common, I've never seen a trust with multiple beneficiaries that allowed any one of the beneficiaries to withdraw the entire principal. You can see the reason for that, as you get a race to the trustee to request the money (and what happens if both beneficiaries ask at the same time -- who wins?).

My almost-six-year-old daughter has developed a taste for mysteries, so I've decided to start reading Nancy Drew to her. We're beginning at the beginning, with book #1 (The Secret of the Old Clock); surprisingly, the book has a probate-related aspect. From the School Library Journal write-up:

After aiding an injured child, Nancy accidentally stumbles upon the mystery of Josiah Crowley's missing will. While several of Crowley's impoverished relatives claim that he had included them in his will, his arrogant relatives, seem to possess the only copy, which leaves them in total possession of the deceased man's fortune. Nancy is intrigued by the situation and begins searching for Crowley's missing antique clock, an object that reportedly contains a clue to the will's location.

A new film version of Nancy Drew also opens today (here), starring Emma Roberts (Julia's niece).