Death and Taxes Blog

I've turned into a political junkie during this election cycle, but one thing I missed -- linked to recently in a post-mortem about sexism and Senator Clinton's loss to Senator Obama -- was this, from January.

Evidently there's a television show called "Morning Joe," and on it someone named Mike Barnicle (the Sailor?) said of Senator Clinton:

"... when she reacts the way she reacts to Obama with just the look, the look toward him, looking like everyone's first wife standing outside a probate court....

I don't think I get it. Does he mean the way a wife would look at her husband in divorce court? Because probate court and divorce court aren't the same thing (at least not in Illinois). It still doesn't make any sense to me.

Last night's episode of 30 Rock (still, I think, the funniest show on TV) featured TV executive Jack Donaghy (played by Alec Baldwin) trying to convince Tracy Jordan (played by Tracy Morgan) to become the celebrity voice of the Republican party. Jordan's resulting commercial, meant to appeal to what he first refers to as "blackmericans," is pretty funny:

My fellow black Americans. Dr. King once had a dream, a dream that we all share: to build a 200-foot wall to keep Mexico out. And he also hated the estate tax.

(Later, Jordan says that "I get it -- the Republican party means less taxes, more guns, and the end of the gun tax.") The whole episode is available for free here -- the commercial comes at around 15:45, but the entire thing is really funny (especially Baldwin's Richard Nixon impression).

I have praised "The Wire" before (here and here) -- I think it's the best thing I've ever seen on TV. Tonight is the series finale. It will probably be impossible to understand what's going on if you are new to the show, but there's always DVD.

"The Wire" isn't a law show per se -- although the show does touch on legal institutions -- but its creator and some of its writers have taken a unique legal position (known as jury nullification) in this article in Time magazine:

If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will — to borrow Justice Harry Blackmun's manifesto against the death penalty — no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens.

1. I'm a notary -- it's helpful when clients have to execute their documents. One thing I didn't know -- it's cool!

-Here's Angela this week's episode of "The Office," talking about her break-up with Dwight (who euthanized her cat):

How do you tell someone it's over? You send them a notarized letter, right? But what if the recipient IS your notary?

-This week's edition of Entertainment Weekly has a short article about superproducer J.J. Abrams, whose pilot for a show called "Boundaries" has been picked up by ABC for next season. "Boundaries" is about a "cable-access psychologist who becomes a notary public." According to Mr. Abrams, it's "a very funny take on the private-investigator format. She won't sign anything until she finds out what's really going on. She's basically nosy as hell."

2. George Clooney plays the title character in Michael Clayton. The character is a lawyer, described at one point as "specializing in Wills and trusts" -- in truth, Clayton is a "fixer." He's special counsel to a prestigious law firm, helping to solve touchy problems for its partners and clients. Now he has a big one -- one of the firm's big litigators, a manic depressive, took off all his clothes at a deposition involving the firm's major client, U/North, and may be ready to torpedo U/North's case.

I won't give away anything more -- this is a pretty enjoyable movie, with a great cast (including Tom Wilkinson, Tilda Swinton and the director Sydney Pollack). It's in my top ten for the year (holding steady at #1 is Once; last year's co-#1s were Children of Men and Little Children).

I blogged about the HBO series "Big Love" and estate planning last year, here. The show -- about polygamists -- is back for a second season, and it's really reaching a creative peak. I don't know of too many television programs that can deftly blend drama and comedy like it does.

On this week's episode, the mother of Margene (aka Wife #3) pays a visit. During the course of the episode, Margene's mother learns that her daughter is a polygamist, and Margene's husband Bill tries to address her concerns. Are Margene -- who obviously doesn't have rights as Bill's spouse under the law -- and her sons protected if something happens to Bill? The answer is "yes," as Bill indicates that he has set up irrevocable trusts for Margene and the boys, and makes gifts to the trusts each month. (That's sort of a pain since, as I discussed here, each beneficiary would need to receive notice whenever a contribution is made to the trust.) I wonder who is acting as trustee?

Next week I'll be starting a series on Gift Tax, but for now, since we're still in a vacation week, a movie review:

I stumbled upon What Rats Won't Do a couple of weeks ago on IFC. The 1998 movie, which stars James Frain and Natascha McElhone, is a romantic comedy in the vein of Intolerable Cruelty (which I enjoyed) and Forces of Nature (which I didn't). Mr. Frain and Ms. McElhone are both attorneys, but unlike the above movies, which involved divorce courts, What Rats Won't Do is set in probate court. (Or, at least, the English equivalent thereof.)

The movie might seem prescient, especially in light of the Anna Nicole Smith case (the one involving her husband's death, not her own). Millionaire Gerald Burton has died, and now his son (played by Charles Dance) and his young, second wife (Parker Posey) are fighting over the inheritance. Of course, this is one of the most common probate litigation scenarios.

By the way, the film's title is based on a comment made by Mr. Frain's character, Jack Sullivan, about how scientists are now using lawyers instead of rats for their research, since the scientists get attached to the rats, and "there are some things even rats won't do." I'm not really into lame lawyer humor, and the film isn't incredibly witty, but I did like this exchange between Mr. Frain's character and a judge (they're at a bar dinner):

Judge: Ah, Sullivan. This bordeaux is like your approach to litigation -- cheeky, too much fruit, and far too buttery.

Sullivan: Really, your honor. I was just thinking it was dusty and acidic, with an unpleasant finish, just like one of your summings up.

Judge: (Cough)

Last season I blogged about the "The Office" and its take on conflict resolution (here). This week's episode (Thursday, April 5th at 7:00 CST) is in the same vein:

SALARY NEGOTIATIONS DRIVE MICHAEL TO THINK ABOUT HIS OWN PAY - Darryl (Craig Robinson) decides to meet with Michael (Golden Globe winner Steve Carell) to negotiate a pay increase. Meanwhile, Jim (John Krasinski) deals with the consequences of Pam's (Jenna Fischer) confession to Roy (David Denman) .

My sources tell me that Michael attempts what might be described as a Lysistrata-inspired maneuver with his boss and girlfriend, Jan.

Last night I spent 2-1/2 hours (!) watching Superman Returns on DVD.  I knew I was in trouble from the opening scene, in which Lex Luthor (played by Kevin Spacey) apparently inherits a bunch of property from a wealthy older woman by having her sign a new Will -- with Luthor as the only witness -- just seconds before her (suspicious) death.  I suppose it's interesting that the older woman was played by Noel Neill (Lois Lane in the old TV series "Adventures of Superman"), but I really just felt like I was in Bizarro World -- would any court in Metropolis really uphold a Will executed under those circumstances?

I took in the new Will Ferrell movie, Stranger Than Fiction, over the weekend.  I don't want to give too much away, but the movie's plot centers on a novel entitled Death and Taxes, whose main character is an IRS agent. 

The film is kind of like a mashup of The Truman Show and a (more accessible version of a) Charlie Kaufman movie.  I liked the "debate" between good art and living a good life, although I felt like the film didn't make a lot of sense, and wasted some of its actors (especially Queen Latifah).  I'd probably give it 6 stars out of 10.

Also interesting: the movie was filmed entirely in Chicago.

OK, this doesn't have anything to do with estate planning or probate, but "The Wire" starts its fourth season on HBO this Sunday (check local listings).  As critic Diane Werts once put it, "Most TV crime series aspire to John Grisham's level.  'The Wire' aspires to Dostoyevsky's."  I think this is the best show currently on TV, maybe one of the best TV shows ever, with its complex depiction of the interplay between police, drug dealers, politicians, and -- this year -- the educational system.  It looks like this season will be just as good as the last three.  Here's Maureen Ryan in this morning's Chicago Tribune:

If you have only one hour a week for television, give it to "The Wire."

Even if you think you don't have time for television, find an hour a week to watch the fourth season of "The Wire."  It's a masterpiece.

This past weekend I saw The Break-Up, the Jennifer Aniston-Vince Vaughn comedy about an unmarried couple that decides to part ways.  One of their problems involves the condo that they bought together -- each of them feels entitled to it.  (At one point Vince Vaughn says something like the following to their realtor: "I've thought about it, and the only fair thing would be for her to move out and pay me some kind of penalty.")

Dealing with unmarried clients and their property is difficult for attorneys.  Unmarried couples have either chosen to have a less formal relationship than married couples, or (in the case of same-sex couples) have been prevented from having a more formal relationship.  As a result, many of them don't think about taking other steps (like executing Wills and trusts, or creating a co-tenancy agreement for jointly-owned real estate) that can make the relationship more formal.  Helen W. Gunnarsson talks about this issue in June's edition of the Illinois Bar Journal, in an article called "What to Do When There's No 'I Do.'" (I can't tell, but access to this article may be restricted to members of ISBA (the Illinois State Bar Association.)

Choosing a guardian for minor children is often the most difficult decision faced in making a Will.  Now imagine if that decision involved one husband and three wives!  That was the situation on last night's episode of "Big Love", the HBO series about polygamists. 

Actually, the Will/guardianship storyline began last week, when Barb Henrickson (wife #1) decided that her sister -- who disapproves of Barb's lifestyle -- should no longer be named as guardian of Barb's three children.  This caused all three wives to consider updating their Wills, but with some twists:

Nicki (wife #2) was raised in a commune of polygamists, and doesn't want Barb to be named as guardian of her sons, since she doesn't know if Barb would raise them to "live the principle" of plural marriage. As a result, Nicki wants her father (Roman Grant, AKA the "Prophet," played by the always scary Harry Dean Stanton) and mother to raise her children. 

Margene (wife #3) has told Nicki that she will name her as guardian of Margene's children, but decides that she instead wants to choose Barb for the job (Nicki isn't exactly a warm person -- or a good mom).  When Margene goes to the family attorney to sign her new Will, she is given a copy of Nicki's Will by mistake, and learns Nicki's plan to name her parents as guardians.

Barb was planning to change her Will to name Nicki as guardian, but is now afraid that, if she predeceases Nicki, then Barb's three children will also have to go live with Nicki's parents.

The above situation, while exaggerated, actually raises some important points even for non-polygamists:

1. Think carefully about potential guardians, and about whether they truly share your values. 

2. Don't be afraid to change your mind about guardians as the situation dictates.

3. Be honest with the people you've selected as guardians (and, if it's not too uncomfortable, with those you haven't).

Finally, a piece of practical advice: if you are a polygamist, don't keep all of your wives' Wills in a folder on your desk -- a snoopy employee might find them!

As I noted here, last week's episode of The Office focused on conflict resolution.  Here's a partial transcript of a scene that should be near and dear to any ADR professional.  The participants are Michael (the office manager) and two employees in the accounting department, Angela and Oscar, who are fighting over whether Angela should be able to display her poster of babies -- in diapers, hats and sunglasses -- playing saxophones.  (I wish I could find a picture of the poster, but I can't seem to locate one online).

Michael holds a 3-ring binder with the title "A Mediators Toolchest."

Michael: "A Mediators Toolchest." OK.  Well, before we get started, you should know that there are five different styles of conflict.  [In kung fu-ish voice] My Shaolin Temple Style defeats your Monkey Style.

Angela: Can we go? I have a lot of work to do.

Michael: No. This is important.  OK.  The first style is lose-lose.

Oscar: What's the next one?

Michael: Just hold... on... please.  OK.  If we do lose-lose, neither of you gets what you want.  Do you understand? You would both... lose.  Now I need to ask you -- do you want to pursue a lose-lose negotiation?

Angela: Can we just skip to whatever number five is?  Win-win or whatever?

Michael: Win-win is number four, and number five is win-win-win.  The important difference here is, with win-win-win, we ALL win.  Me too.  I win for having successfully mediated a conflict at work.

Michael, Angela, Oscar, and Pam (the office receptionist) then go to look at the offending poster.

Michael: Let's see if we can't just brainstorm and find some creative alternatives that are win-win.

Pam: win.

Michael: Yes.  Thank you, Pam.  How about Angela makes the poster into a t-shirt which Oscar wears.  That way he can never see it and whenever she looks at Oscar, she CAN see it.  Win-win-win.

Oscar: No.

Angela: That's -- no.

Michael: OK. Well, brainstorm.  Own the solution.

Angela: How about I leave it up?

Oscar: How about she takes it down?

Pam: How about Angela can keep it up on Tuesdays and Thursdays?

Michael: OK, that is called a compromise and it is style three.  And it is not ideal.  To sum up --

win-win: make the poster into a t-shirt
win-lose: take the poster down
compromise: Tuesdays and Thursdays

and the answer is [holding his head like he is deep in thought] ... make the poster into a t-shirt.  Win-win.

Pam: win.

Oscar: Fine.

Angela: But...

Michael: It is done.

This is a pretty funny scene (maybe funnier on TV than on paper), but it also contains a lesson for mediators about what NOT to do.  Michael as mediator injects himself into the mediation twice, first by insisting on win-win-win negotiation (where he also gains something), and then by switching his role from mediator to arbitrator, and announcing his solution to the conflict. 

Monday night I was flipping around on the TV, and came across a show entitled "Celebrity Prenups" on VH1 -- here is a link with more info.  The show was a bit ridiculous (are reporters from Modern Bride and US Magazine really experts on prenuptial agreements?), but made some interesting points.  Essentially, celebrity prenups fall into three categories: good, bad, and really bad (aka non-existent).

Good: Donald Trump's attorneys evidently have more skill than his hairstylists.  Mr. Trump has been divorced twice, and both prenups have been upheld.

Bad: Steven Spielberg's prenup with Amy Irving didn't hold up because Ms. Irving wasn't represented by an attorney.  (That the prenup was written on a napkin also probably didn't help matters.)  There's also a question of whether Britney Spears' prenup with Kevin "K-Fed" Federline would be invalidated if the two divorced -- the prenup was signed on the day of their wedding (a definite no-no).  The prenup appears to have so confused and disoriented Mr. Federline that he wound up wearing a tracksuit with the words "Pimp Daddy" on the back to the actual ceremony.

Really Bad (aka Non-Existent). For a show about celebrity prenups, this program sure spent a lot of time discussing parties who took a big hit because they didn't sign a prenuptial agreement prior to marriage.  Falling into this category: Michael Douglas (with respect to his first wife, Diandra Douglas) and Harrison Ford (with respect to his second wife, screenwriter Melissa Mathison).  Jessica Simpson may also be added to this list in the near future.

I find probate and trust administration to be fascinating business, but it's rarely the subject of art and literature.  One major exception is Charles Dickens' Bleak House, which involves chancery proceedings in the interminable case of Jarndyce v. Jarndyce.  The case is described by one of the characters as follows in Chapter 8:

"it was about a Will when it was about anything....  A certain Jarndyce, in an evil hour, made a great fortune, and made a great Will.  In the question how the trusts under that Will are to be administered, the fortune left by the Will is squandered away."

Bleak House is also the subject of a new adaptation starting tomorrow night (and running through February 26) on "Masterpiece Theater" (check local listings).  The reviews are starting to come in, and they're very good -- Nancy deWolf Smith, writing in today's Wall Street Journal, called it "perhaps the most glorious Masterpiece Theater of all time."

I'm working my way through the book right now, and hope to have a review when I'm finished (which may not be very soon -- my edition runs 989 pages, not including notes).

I'm a huge Jane Austen fan (must be the English major in me), and took in the latest version of Pride and Prejudice (with Keira Knightley and, for some reason, an ampersand in the title) over the weekend. 

Perhaps I love the story for its mix of real estate and estate planning?  One of its main elements involves an "entail," which prevents Mr. Bennet from bequeathing his home to one of his five daughters.  Upon Mr. Bennet's death, the property will instead pass to a distant relative, Mr. Collins (who of course shows up and attempts to woo Elizabeth Bennet).  Luckily, Elizabeth and her sister Jane are able to find true love with men whose money can save their sisters and mother from destitution.

This page has a great introduction to the entail (and inheritance) issues in Pride and Prejudice.

Since I'm sort of in the middle of Will Contest Week, I can't ignore one of the most famous Will contests ever, which involved Howard Hughes.  Mr. Hughes died in 1976, and it appeared at the time that he had died intestate (i.e. without a valid Will).  However, soon after Mr. Hughes' death, a handwritten Will turned up at the headquarters of The Church of Jesus Christ of Latter-day Saints.  That Will was supposedly signed by Mr. Hughes and left 1/16th of his probate estate ($156 million) to a man named Melvin Dummar.  For his part, Mr. Dummar claimed that one night he had found Mr. Hughes on a deserted Nevada road, and had then driven Mr. Hughes back to his home in Las Vegas.  Mr. Hughes' heirs were (unsurprisingly) not amused, and a court battle ended with the Will being declared a forgery (and therefore invalid); as a result, Mr. Hughes' entire probate estate passed via intestacy to his cousins.

Jonathan Demme's film "Melvin and Howard" mostly focuses on Mr. Dummar's adventures and misadventures, although the last 20 minutes or so discuss the court battle.  The movie is a nice slice of life about a guy with big dreams who doesn't always have the best of luck. 

Mr. Dummar may have lost out on a big payday, but he's still kicking around:

"Melvin still swears by encounter with Howard" (Las Vegas Review-Journal)

"Dummar may have told truth after all" (deseretnews.com)

"Veronica Mars" is one of my favorite television shows -- it cleverly combines elements of "Twin Peaks" (murder mystery), "Buffy the Vampire Slayer" (tough-as-nails heroine) and "The O.C." (clever humor and wealthy environment), which is one of the reasons it inspires such rabid devotion. 

Tuesday's episode featured an estate planning attorney meeting with the surviving spouse and children of a woman who committed suicide (we think -- the woman's son believes she may still be alive).  The scene couldn't have lasted more than two minutes, but it contained three elements that don't ring true from an estate planning perspective:

1. The estate planner was present to perform a reading of the Will.  In my experience, this never happens -- the beneficiaries either know about the contents of the Will before the decedent's death, or I send them a copy of the Will afterward.  This approach is a lot less dramatic than announcing to the family (on a dark and stormy night, if possible) that black sheep Cousin Norbert has been cut out of the Will, but much more efficient.

2. The decedent disinherited her surviving spouse.  In most states (including California, where "Veronica Mars" takes place, and Illinois), a spouse can't really be disinherited via a Will (it may be possible in Illinois via other methods, but I'll save that discussion for another time).  A spouse who is disinherited can essentially invalidate that part of the Will, and then collect a certain portion of the decedent's estate (usually 1/3rd or 1/2). 

3. The Will gave away very specific property.  I'm paraphrasing, but the attorney said something like the following while reading the Will: "I leave my Morgan Stanley investment account (number xxxxx), valued at $180,000, to my son."  This type of provision would never be included in a Will, for practical reasons: What happens if the account is closed prior to the decedent's death? What happens if the account increases or decreases in value -- was the intent for the son to receive that particular account, or an amount of money equal to the value of the account when the Will was signed?  Because of these problems, I try to have my clients define their estate generally, in terms of the "residue," rather than by reference to every single asset that is owned.