Phinney Estate Law will be closed from July 27 to August 3, 2011 for a family vacation.  We will not have phone access but will have limited email access.  We will only be responding to email for emergencies.  We appreciate your patience on other matters.  We will be seeing clients as soon as we get back, so please feel free to send us an email while we are gone.  We will respond as soon as we are back.

This month Vanity Fair had an interview with Bill Moyers.  I have always been a big fan of Moyers and was struck by the novelty and thoughtfulness of his answers here.  I was also struck by his answer to one question that was so typical that it could have been from anyone on the street:

How would you like to die?
Gently, at home, free of pain, in the presence of the people I love and who love me.

I am always struck by how common that sentiment is and how uncommon it comes to be even for people who could with proper hospice care.  If you have similar goals, you can make it much more likely that it becomes a reality for you by doing estate planning that includes naming a health care agent, providing a directive for health care, and have a real conversation with your family about your wishes.  

To learn more about how to start that process, contact us for a free consultation at [email protected] or (206) 459-1908.

At Phinney Estate Law we regularly represent friends and family members petitioning to become or serving as court appointed Guardians.  Because these people are serving as guardian for less than three people they are not required to be certified by the court and are referred to as "Lay Guardians."  Because of concern that lay guardians, especially those not represented by counsel, may fail to do all they are required to do in their position, the legislature has passed new rules for lay guardians that go into effect July 22, 2011.

The most significant of these new rules require that lay guardians have "expiring letters" meaning that the letter that gives them authority has an expiration date and must be renewed by filing the required annual or tri-annual reports.  King County and Snohomish County has already had this requirement for many years so guardians serving there will not see a change.

Another significant changes is that all lay guardians will be required to take an online video training about their responsibilities.  This new training is different that the video training already offered in King and Spokane County.  All new guardians will need to do the training before they are appointed and all serving guardians will need to retake it every time they submit their annual or tri-annual reports. 

There are other changes to court forms and 90 day reports but these are very similar to what is already done in King and Snohomish County and so should not be a change for guardians serving in these counties.

All current PEL clients serving as Guardians will receive instructions about these new rules and how to comply.  If you are not a current client and have questions about these new rules and how they will impact you, please contact us at [email protected] or (206) 459-1908.

ADEMPTION
:

It is not uncommon for a will or trust to make a specific gift to an individual that they do not still own when they die.  "Ademption" is the legal term that describes this situation and the rule that there is an effective revocation of a specific gift in a will as a result of it's not being in the testator's estate at death.

Ademption occurrs in two different ways.  "Ademption by Extinction" occurs if the gift has been transferred to a third party.  For example, the will leaves the Decedent's grand piano to her daughter but that piano had been previously sold when the decedent downsized or was given to a neighborhood school. 

Ademption by Satisfaction occurs if the gift has been advanced already to the person called to receive it. For example, the daughter was given the grand piano five years ago and has it in her living room.

In our experience Ademption by Satisfaction causes little problem when administering estates.  Most people accept the rule that, if they have already received the gift, there isn't a problem. Occasionally people have argued that they should receive cash in equivalent value at the time of death.  The law simply doesn't support such a claim.

Ademption by Extinction is slightly more problematic.  It is often unclear in such cases if the Decedent really intended to reduce the gift to the beneficiary when they made the transfer.  While such issues arise whenever there is a transfer, it is even more problematic in our experience where the gift had already been transferred to another family member.  If you are handling an estate or trust with a significant Ademption by Extinction issue it may be wise to consult an attorney.  An attorney can assist you in conducting a good due diligence investigation into how, when, and why the asset was transferred and what is known about the intent of the Decedent and let you know what your rights and obligations might be.  If you come to the conclusion that it would have been the Decedent's intent to give the beneficiary an equivalent gift that can be addressed, if all parties agree, in Washington State by a TEDRA Agreement.  Reaching such an agreement can be facilitated mediation or collaborative law if need be. 

If you have questions about Ademption, please contact us at [email protected] or (206) 459-1908.

For many people the need to leave a lasting legacy is fundamental.  The need to know that even after they are gone there lives will have meaning through their contributions and impact on those left behind.  At Phinney Estate Law we believe that leaving a legacy is about more than just leaving wealth.  It is about the impact that people make on those they love and their community and the traditions they build that live on beyond them.  Planning for such a legacy isn’t a onetime event it is a lifetime’s work that can start with simple steps.

Great ways to build a legacy include:

• Think consciously about how you would want to be remembered and your core values, draft up a “mission statement” and refer to it as you make decisions in your life – big and small.
• Develop family traditions around holidays that match your values and have real meaning to you and your family.
• Create a tradition of community contribution by regularly volunteering for causes you support with your family and close friends.
• Learn & preserve your family’s history by creating family trees and matching photos with stories of who that person was and what they contributed to your family and community. 
• Learn & preserve those parts of your culture you want your family to know and understand including language, food, and festivals.
• Draft a Legacy Letter to those you love.
  
• Include contributions to charities whose work you support into your estate plan or lifetime gifting.  Share the motivation for those gift with those you love.
• Prepare an estate plan and disability plan that allows your loved ones the space to grieve and rebuild their lives without unnecessary conflict or legal hassle and expense.

At Phinney Estae Law we are committed to helping clients leave a legacy they can be proud of.  We can help you to draft an estate plan that takes care of your affairs and work with your to make sure that your plan to minimize conflict after you are gone.  We also love working with clients to creatively plan for their legacy outside their legal documents.  We can help you with examples from other clients, coaching, and more.  For more ideas, explore our website and blog or contact us for an appointment at [email protected] or (206) 459-1908.

Did you know that there is actual credible scientific evidence that consuming blueberries regularly can improve memory and ward off dementia?  Recent studies show that older adults with early memory decline who drank two cups of blueberry juice every day for two months showed improvement in learning and memory over a control group.   These results confirm the findings of previous animal studies, which showed that blueberry consumption can reverse age-related deficits of both brain and behavioral function.  Animal studies also show improvement in balance and coordination. Similar results have been seen with diets that include strawberries and cranberries but those have not been replicated yet in human studies. 

Eating a lot of blueberries isn't a substitute for doing a good estate plan that will make sure you get the care you need while maximizing your independence and dignity if you become incapacitated. But it might mean that you don't need to use the plan as soon. At Phinney Estate Law, we loves having our clients' plans go unused for as long as possible. So eat up!

If you have questions about how to plan for your possible future incapacity or how to take care of a loved one with dementia, contact us at [email protected] or (206) 459-1908.   We can talk to you about good planning using tools like Powers of Attorney and Health Care Directives. If planning wasn't done in time we can talk about options for guardianship and other less restrictive alternatives.

To learn more about the latest blueberry studies see this article on Web MD.  Want to add some blueberries to your diet, check out these tasty recipes:     

• Blueberry Zucchini Bread   
• Deliciously Sweet Salad with Maple, Nuts, Seeds, Blueberries, and Goat Cheese
• Blueberry Cupcakes
  

Got your own blueberry recipe to share? send us one before the end of August 2011 and we will post it here and you can earn a 10% discount on estate planning services. (Note: This offer only applies to Washington State Residents and cannot be combined with other discounts.  Past customers are welcome to transfer their discount to a designated friend or family member.)

Phinney Estate Law is joining other Seattle small businesses in endorsing a proposal by the Seattle Coalition for a Healthy Workforce to pass a city ordinance to require employer to provide paid sick leave to all employees. 

Only 60% of employees in Seattle currently have any paid sick leave.  The remainder must choose between going to work sick or loosing income or even their job.  Caretakers for the elderly are often among those who have no paid sick days, putting their patients at risk.

The current proposal calls for businesses to provide paid leave.  The amount of leave required depends on the size of business and ranges from five days for businesses with less than 50 employees to one hour for every 15 hours worked for employers with more than 1000 employees.  The proposal allows employees to choose shift switch programs instead of leave and allow for more generous paid leave policies that allow employees to use the leave for either sickness or vacation.

Leave could be used for the employee's own illness, injury, diagnosis, treatment or preventative care; for the heath needs of a child, spouse, domestic partner, parent, parent-in-law, or grandparent; to deal with the consequences of domestic abuse, sexual assault, or stalking; or the the place of business or a child's school is closed for a public health emergency.  At Phinney Estate Law we have seen the bind that adult children can find themselves in when a parent has a health crisis and they have no leave to respond.  We appreciate that the proposal recognizes the increasing need as the working population ages of workers to take care of spouses and elders in crisis. 

In addition to being impressed by the flexibility and inclusion of the proposal we are pleased by the story of how the proposal came together.  Unlike other jurisdictions that have adopted similar proposals after nasty political battles between health care activists and business leaders, in Seattle small businesses and health care advocates worked together to collaborate on a proposal that would address three agreed upon principals: 
(1) We all benefit when people do not come to work sick, (2) No one should loose their job or income because they are sick, and (3) We all benefit from the success of local, vibrant small businesses in our city.  The final proposal has more wide spread support and contains greater flexibility with wider coverage that other proposals.  We think it is a great example of how a collaborative approach to conflict can result in an solution better than the result either party would have achieved "winning" a traditional fight. 

To learn more about the proposal and the unique process that lead to it, check out the Coalition's website.  Phinney Estate Law is proud to be part of the coalition and encourages clients to learn more.

ABATEMENT:
When someone dies their debts, taxes, and the costs of administrating their estate are required to be paid before any gifts or bequests may be distributed.  If the estate distribution plan is simple and the assets far exceed the debts this is a simple process.  However, if the estate contains a lots of specific gifts and/or debts are high, the executor must decide in what order property will be used to pay for the debts, taxes, and costs.  The priority in which the assets are used is known as "abatement." Washington has a statute the spells out the order in which these assets are to be used and it covers both assets passing through a formal probate and assets transferred through beneficiary designations, trusts or other non-probate process.  The rules in the statute can be changed by the terms of the Decedent's will or trust as long as they still allow all debts, taxes, and costs to be paid. 

The rules of abatement can be complicated and don't always match the expectations of families.  Before assets are used to pay debts, a Trustee or Personal Representative in Washington should consult with an attorney to make sure that they are using the right assets.  Abatement is the source of a number of probate disputes and mistakes can lead to unnecessary expense and conflict and even result in personal liability for the Trustee or Personal Representative. 

If you have questions about Abatement, please contact us at [email protected] or (206) 459-1908.

On July 11, 2011, Division One of The Washington State Court of Appeals issued a new published opinion about Will Contests Based on "undue influence."  Because will contests are disfavored in Washington and relatively rare, published appellate decisions are likewise rare and always useful in understanding how courts view these decisions. 

Re Estate of Haviland -- Wash.App --, 2011 Wash.App Lexis 1564 (2011) dealt with a will executed by a prominent man later in life that left most of his property to his wife. In most cases that would appear to be a strange scenario for a will contest.  However, in this case this was a second marriage and the testator had gone to great lengths with his first wife to set up an estate plan that primarily benefitted their children and grandchildren for life and then charities to which they were long time donors.  When Mr. Haviland first remarried he made a modification to his estate plan that left a substantial gift to his new wife.  That change was not contested.  However, over the next 10 years more than $3 million dollars of his estate was transferred to his wife's separate property or her children from a former relationship while his health declined into what was eventually diagnosed as advanced dementia.  The last change to his will occurred when his wife contacted his attorney and provided him with Mr. Haviland's former will with changes in her handwriting that increased substantially the gift to her, left nothing to his children or grandchildren, and reduced the amount going to charity.  The attorney made the changes and had Mr. Haviland execute it at his office after just a short meeting in which Mr. Haviland answered only "yes" or "no" questions. 

The trial court found that the challengers of the will had met the burden of proving undue influence that "controlled the volition of the testator, interfered with his free will, and prevented an exercise of his judgement and choice." The court affirmed that the burden of proof for such cases is "clear, cogent, and convincing" but found that in this case the challengers had met that burden by raising a rebuttable presumption by establishing the factors laid out in Dean v. Jordon 194 Wn. 661 (1938).  Specifically, the trial court found that the three mandatory factors had been met - (1) the beneficiary was a fiduciary of the testator (2) the beneficiary participated in the procurement of the will and (3) the distribution of the will was unnatural based on past estate planning.  It also found that a needed fourth element was present.  In this case that was met by the testator's poor health, his dependence on his wife as his sole caregiver, and her self-serving transfers of his assets which the court found to be exploitative.  The court further found that once this presumption was raise, the wife did not produce evidence to balance the scales or overcome the presumption.

On appeal, the wife argued that the Dean test should not apply to married couples because they are so frequently each others fiduciaries and participate in the procurement of each others wills.  The court disagreed finding that while it was true that was frequently the case the Dean test requires all three mandatory factors and at least one additional factor making the frequently of any one factor in isolation irrelevant. 

The facts of this case are not pleasant but they are in many ways no more shocking than the facts in Estate of Kessler, 95 Wn.App 358 (1999) where the court held the will to be valid.   Estate of Kessler has been cited in almost every published case regarding will contests in Washington since its own publication but was not cited or distinguished in this case.  There are some factors that would appear to distinguish the cases.  First, the beneficiary in Haviland clearly more fully participated in the procurement of the will.  While the beneficiary in Kessler found the attorney and set up the appointment, the testator in Kessler ultimately met alone with the attorney and had some substantive conversations about her wishes. Second, there was no an established history of financial exploitation outside the estate plan in Kessler and that was clearly a significant factor in Haviland even though it is the first time a Washington Court has identified financial exploitation as a Dean factor. 

I think it worth noting that many of the cases were wills have been found to have been the product of undue influence have been ones where there was a romantic relationship between the Testator and Beneficiary, a large difference in their ages, the relationship began late in life, and the Testator had a large estate.  See Estate of Lint, 135 Wn.2d 535 (1998).  We would speculate that if Mr. Haviland's wife had been 5 years younger rather than 50 years younger and if the total amount of the estate that had been transferred or would go to the wife was $350,000 rather than more than $3.5 million the court might have seen less exploitation and undue influence and more of an attempt of a spouse to provide for the care of a wife who had cared for him in his final years. 

It is also interesting to note that the court in Haviland specifically found it was unnatural for Mr. Haviland to make the distribution in the will, even though it would have been more in keeping with an intestate distribution than his old will because of his history of giving to his children, grandchildren and charities during his life and in past estate plans.  Many family members who do not inherit under wills assume that this fact alone gives them the basis for a will contest.  The court here makes it clear that it might not even get them a single Dean factor in their favor if past estate planning and lifetime behavior make such a disinheritance "natural" for them.

Practical Lessons for Estate Planning:

I think it can provide some useful guidance to people wishing to spare their families a will contest fight and to leave money to someone they think their family or friends may object to:
    (1) Try to imagine your situation in the least flattering light possible.  You may think your beneficiary is beyond suspicion and reproach but you won't be there to give your perspective. Try to imagine how it might look from the outside and act accordingly.
    (2) Insulate your beneficiaries from your estate planning if necessary.  While it is common and even recommended that spouses plan together, if there is already family drama, a big age difference between spouses, and a lot of money at stake, independent counsel may be wise.  If you take that route, make the appointment yourself and don't have the beneficiary come with you.  Even if there is not drama, a small difference in ages, and only a moderate estate it may still be wise to make sure that you speak alone with your joint attorney and at some length so that they can later testify about your capacity, reasoning, and independence.
    (3) Write a letter in your own words and ideally your own handwriting that explains your decisions in terms that are honest but loving.  Either share it with your family now or put it with your will to be shared at your death.  I have found such letters let people feel much more at peace with your choices.  They feel that they can hear your voice and reasons and choose to honor you by honoring them. 

Practical Lessons for Probate Litigation:

Will contests are unpredictable, expensive, and destructive to families.  They also require challenging party to paint the testator as weak and manipulated in a public fashion.  Mr. Haviland had built a legacy of medical research, community leadership, and philanthropy.  I strongly doubt that he would be happy to know that 50 years from now he will be most likely remembered as the victim of undue influence in a published decision that painted him as the frail dope of a gold digger.  If his will did really represent his wishes, it is a shame that he didn't take some of the steps above.  If it did not, an untarnished legacy is yet another thing his wife stole from him.  In any event, it would have been wonderful if these parties, as much as they may have disliked each other by the end, could have found a way to settle this matter privately through mediation or collaborative law.  It might not have worked but, if it had, when we "googled" James W. Haviland we would have gotten a very different result and the money spent on the legal fees to take this all the way to the court of appeals could have been used from some of the medical causes he dedicated his life to support.

If you would like to consult with a Phinney Estate Law attorney to help you plan your estate with an eye to preventing conflict or to resolve a conflict with an estate, contact us at (206) 459-1908 or at [email protected].