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 Iever learned in law school. Lester called my office six months ago, insisting on an immediateappointment.
“Sure, come right over,’ I said.”What’s the problem?’ Lester was a personal friend whohad 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 callsfrom jailed clients nor a divorce lawyer used to sobbing visits aftermarital disputes.
Mine was a suburban civil practice whose bread andbutter was real-estate closings, wills and corporations. Still, everyclient thinks his case is an emergency. Lester–dressed as always in Bermuda shorts and a polo shirt, hisstandard bicycling garb–walked into my office. “John, I justreceived some bad news,’ he began.
“My doctor called andasked me to come down and talk to him about the chest X-ray I had lastweek. There’s a spot on my left lung, and you know what thatmeans.’ He stopped and handed me a rough draft of a will. “Ineed your help.’ I nodded understandingly and looked at what he had handed me.Lester’s draft was short: “I leave all my property one-halfto my wife and one-half to my children.’ The second sentence wasthe clincher.
“I give and bequeath to my son Lawrence my RaleighInternational bicycle and one-half of my bicycle equipment; to my sonRaymond I give and bequeath my Raleigh Super Course bicycle and one-halfof my bicycle equipment.’ Attached were two typed pages of stocksand bonds he owned. Here was a man with a two-page list of stocks and bonds worth ahalf million dollars, and he devoted more space in his will to hisbicycle 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 meprepare that will. Before then, I had looked upon wills simply as amechanical means of passing on wealth–a routine workman’s taskcalling for minimum thought from the lawyer. Lester caused me to seethat a will is an expression of values–materialistic and other–aperson 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 thewill.
Lester valued not only money but the health and enjoyment hereceived from bicycle riding. He wanted his sons to remember him byhaving his bicycles, and he also wanted them to keep the same values helived by– regular exercise and good health. This was the personal touchin his will, and it taught me to include a personal dimension in everywill I draft.
With my new philosophy of writing wills came a new check list ofitems to cover with my clients. The standard ones were still there: 1)Whom do you want to receive your property? 2) Who should be namedguardian of your children if they are minors when you die? 3) Whom doyou want to be your executor? 4) Any charities you want to leave moneyto? 5) Will you have enough property for estate-tax problems–anestate 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 valueor meaning you want to leave to a special person? 2) Do you have anyspecial messages or advice to give to someone? The last questions cause clients to think about the opportunity touse their wills for more than a means of parceling out money. One of myfavorite examples is a young advertising executive, anxious to be surehis children were properly cared for if he and his wife diedprematurely. Young couples do not like to think about wills because itmeans focusing on the unpleasant and unfamiliar subject of death.However, losing a friend in a car accident made them realize they mustconsider such a possibility.
We spent many hours discussing whichrelative should serve as guardian of the children. I advised someonegeographically close so the children’s school and friendshipswouldn’t be disrupted, or a person with children close in age totheirs. After outlining a lengthy will with guardianship andinsurance-trust provisions, I asked about items of personal significanceto include. “My wine,’ the husband shouted. The opening bequest inhis will is a classic: “I give and bequeath my case of 1961Chateau Mouton-Rothschild Magnum to my brother.’ I learned quickly that many clients will try to use a will to rulefrom the grave. After going through my check list with one man andexploring his options for using a will to influence people after hisdeath, he put in the following clause: “$100,000 to my wifeprovided she does not remarry.
‘ Another client insisted on thisone: “I bequeath $25,000 to my grandson on his 21st birthday uponthe condition that he never smoke marijuana or drink alcohol before thatday and that he swear to my executor that he shall never do soafterward.’ 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 theCatholic faith.’ (This clause was the subject of a lawsuit 15years ago by the daughter who took a husband of another faith. She lostthen but would win today, in my opinion, because of the law’sgreater emphasis on religious freedom.) I recommend using a will toinfluence rather than to control, though the line between the two isdifficult to draw. Many clients want to talk about avoiding probate.
This term meansleaving property in other ways than a will. These probate-avoidingdevices consist of joint ownership, trusts and insurance. Each one ispopular and advisable, even with a will.
Discussing all of them with aclient makes the lawyer an estate planner rather than a mere willwriter. Joint Ownership The most common form of joint ownership is a joint bank account orjoint ownership of real estate, with the words “as joint tenantswith right of survivorship’ after the names of the two co-owners.In the case of a bank account, money is available immediately to theother upon the death of one co-owner without having to go throughprobate. This arrangement averts delay in using the money andeliminates the fees of executors and attorneys charged when the accountis probated through a will. The same result occurs with joint ownershipof real estate. Trusts The most common form of a trust is a bank savings account held byone person “in trust for’ a second. The first person acquiresthe total right to use the money up to the point of death, and upon hisdeath it becomes the property of the second person. Probate and itsdelays and fees are bypassed.
The wealthy have used trusts for all types of property forcenturies. The reasons are simple–a trust allows control and use untildeath, makes property available to beneficiaries the instant after deathand causes no publicity, because trusts do not become part of the publicrecord like wills. In the past 20 years, trusts have becomeincreasingly popular with the middle class for the same reason the richhave always liked them–the avoidance of the fees, delays and publicityof probate. Notwithstanding the popularity of trusts, the will is still thebasic 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 aminimum of $1,000 for a trust. And finally, because even the highpriest of the antiprobate movement, Norman Dacey, recommends a will tocover things you cannot put into a trust or other probate-avoidingdevice. For instance, guardianships for minor children can only beplaced in a will; money for death in a car or an airplane accident canonly be received by an estate (the items the will governs); and only thewill can direct whether estate taxes are to be paid completely out ofthe “probate estate’ –that passing under the will or to beshared by the recipients of the “nonprobate estate’ (therecipients being those receiving joint property, trust property andlife-insurance proceeds.) I prefer the will mainly, however, because of what Lester taughtme– that a will can do more than simply pass on wealth to the nextgeneration. Properly thought out, it can put a personal dimension intoestate 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 canmean more than money.