Join me for my somewhat contrarian Leimberg SLAT webinar

Most marketable, mnemonic sales-oriented trust and estate planning efforts (e.g., SLATs [spousal limited access trusts)] are greatly oversold, in my opinion. I am not opposed to the use of SLATs, but believe strongly they are being marketed with over-weighted accolades that fail to reflect crucial tax and non-tax checklist items and other important considerations. As a practitioner, I try my best to review trust and estate sales efforts from the perspective of an informed customer, rather than simply from a seller’s view. My upcoming Leimberg webinar will cover an array of these different SLAT factors and issues that can help you better serve each particular client; and touch on the potential alternative or complimentary use of inter-vivos QTIP trusts. Click here for details about my upcoming webinar.

A More Convenient Death Listing for your Tangible Personal Property

NOTE: The supplemental document I discuss below is good for minor changes for lesser-valued tangible personal property. However, I would not use this separate document for tangible personal property with significant value or family sentiment. Instead, make any designations actually in your Will, or prepare a codicil, with the appropriate notary and two witnesses, etc. I see far too many seriously emotional disputes among family members fueled highly by fights over tangible personal property.

Now directly to the topic of this post. Georgia has a revised statute under O.C.G.A. Section 53-4-5 (effective January 1, 2021) that now allows a more convenient method of preparing a listing of your tangible personal property for your named beneficiaries at the time of your death. This statute applies only to tangible personal property; and not cash or intangible property. Tangible personal property is essentially your personal “stuff” that you can actually touch, such as jewelry, art, musical instruments, furniture, household items, clothing, automobiles, etc. Click here for Section 53-4-5.

Under Section 53-4-5 — after you have already signed your existing Last Will and Testament — you can prepare a separate, supplemental written document that describes the tangible personal property and the beneficiary who is to receive that item at your death. This document must: (i) be signed and dated by you (the testator); (ii) describe the items and the beneficiaries with reasonable certainty; and (iii) the option of using this separate document method must already be referenced in your Will. See the sample Will language below.

No notary or other witnesses are required under Section 53-4-5 for the above separate document. Although, the document I use refers to the option (but not a requirement) of including a notary signature. I recommend adding the notary so as to help reduce disputes over your signature, or that you were unduly influenced to sign the document, etc.

The required cross-reference to this method within your existing Will can be something along the line of the last sentence in the following sample provision:

4.2 This section 4.2 covers who at my death gets my “tangible personal property,” defined generally as my personal items that are physically movable, such as automobiles, clothing, jewelry, watches, rings, art, household goods, furniture and furnishings, and other personal-use items generally similar to what I just described above that I own at my death.  I give all my tangible personal property outright to Jane, if she survives me, and if Jane does not survive me, [ . . . ] , or in accordance with any separate designation I make in writing subsequent to my execution of this Will with such separate writing referring specifically to this section 4.2 and to my date of execution of this Will.  

No-Contest Clauses; Still Only Slowly Evolving in Georgia

The Georgia court advance sheets recently included Slosberg v. Giller et al., No. S21G1226, Georgia Supreme Court (June 30, 2022) dealing with a no-contest clause in an irrevocable trust. The point of this blog post is that “no-contest clauses” in Georgia are still in a state of uncertain flux. Judicial opinions like this Slosberg case are part of the slow evolution of the body of law in Georgia for the design and use of these clauses.

In Slosberg a settlor created an irrevocable trust that, upon his death, left the bulk of the trust to his two daughters, and only a nominal amount to his son. The trust included a no-contest clause providing that any beneficiary who contested the validity of the trust would lose all benefits under the trust.

The son filed a lawsuit alleging his two sisters unduly influenced their father as to the creation and provisions of the trust document. After some head-spinning motion for summary judgment and jury trial activity in the trial court, a jury ultimately found undue influence existed with a result that the trial court ruled the trust was void.

But, the case then went up on appeal, and the Georgia Court of Appeals declared that the son nonetheless violated the no-contest clause by initiating the litigation, even though the jury found undue influence. See Giller v. Slosberg, 359 Ga. App. 867, 858 S.E.2d 747 (2021).

The Georgia Supreme Court reversed and held that a no-contest clause does not bar a beneficiary from asserting a claim for undue influence, referring to the longstanding Georgia common law rule that the valid formation of a trust may be challenged.

But, now here is the kicker. The Supreme Court went on to state that if an undue influence challenge fails, the challenging beneficiary is then deemed to have triggered against himself or herself the no-contest clause in the trust. A potentially quite costly Pyrrhic victory.

Here is my take. For years I have (and still do) complain that Georgia does not have a “probable cause” exception to filing challenges to a Will or trust that potentially might trigger a no-contest clause. See, for example, Duncan v. Rawls, 345 Ga. App. 345, 812 S.E.2d 647 (2018)(no good faith/probable cause exception exists under O.C.G.A. Section 53-12-22 [trust no-contest clauses]).

A probable cause exception could enable a claimant to challenge the validity of a trust document, but even if the challenger loses would not trigger the no-contest clause as long as the challenger had sufficient probable cause. There will remain a risk for a losing challenger; but a probable cause exception broadens the opportunity for potentially necessary challenges in some cases.

For example, a test case I wait for is a situation where a lawyer, or other close financial advisor with a confidential relationship to the settlor, himself or herself becomes a beneficiary in a trust, or in some other financially beneficial manner, etc., by potentially having unduly influenced the trust settlor.

Under current Georgia law without a probable cause exception, another beneficiary challenging the lawyer’s (or other advisor’s) potential undue influence may well be a risk the beneficiary simply cannot take. Or, more importantly, cannot afford to lose.

By contrast, if Georgia did have a probable cause exception, I would argue that any lawyer, or other advisor, who has placed himself or herself in a financially beneficial position within a client’s trust document — on its face — provides probable cause reasonably warranting a protected no-contest clause challenge.

Email me and I can send you copies of both this Slosberg opinion, and the Duncan opinion. james@ktlawllc.com

A Common, Explosive Estate Planning Landmine; the “Pretermitted Spouse”

Assume Dad remarries new-wife Jane after Mom’s (Susan) death. Dad does not update his 20-year old Will. And, assume Dad’s 20-year old Will still includes Mom as the primary beneficiary, with their children as the secondary beneficiaries in the event Mom predeceases Dad (which she did). This Will — on the surface — looks normal, without problem.

But, with this 20-year old Will there can be a substantial, unintended result. That is, in Georgia (with a variation of results in other states), at Dad’s death while married now to new spouse Jane, Dad’s remarriage to Jane does not operate to revoke entirely his 20-year old Will; but Dad’s Will will be deemed revoked to the extent necessary to give Jane an intestate share of Dad’s estate as though — only as to Jane — Dad died without a Will. Jane, in this example, is under the law referred to as a “pretermitted spouse”. The intestate share varies by state law; in Georgia a surviving spouse stands to receive no less than one-third (1/3) of the estate.

An exception to the above result arises if Dad’s 20-year old Will expressly contemplates a subsequent marriage, such as stating “In the event of my remarriage, all of the provisions of my Will shall remain fully effective with no provisions or benefits from my estate for any such subsequent spouse”, or language along this line. Note, Georgia case law provides that this contemplation of marriage provision in a Will does not have to contemplate or name a specific potential future spouse. It can be a general, unnamed contemplation provision.

This landmine caution is that I believe this remarriage surprise exists within many families where spouses have remarried, and either never updated their Wills for the new marriage or have Wills that in no manner address subsequent marriage. Or, are simply not aware of this issue.

A simple cure, in my opinion, is to include a contemplation of marriage provision in every married-couple’s Will, and then discuss during the drafting stage whether in specific cases the spouses prefer to exclude the contemplation language.

Sample language in the Will can be along the lines of this example:

“4.3   Contemplation of Remarriage. Although neither Susan nor I in any manner presently contemplate the occurrence of a divorce from one another or a remarriage to another spouse, if for any reason for purposes of this Will following my execution of this Will I enter into marriage with anyone else (other than Susan), my express and clear intention is that any such other spouse shall not receive any property from my estate nor under the provisions of this Will, with the result that all provisions in my Last Will and Testament shall remain fully in effect and unchanged by reason of my remarriage.”

You can google the Georgia pretermitted spouse statute O.C.G.A. Section 53-4-48. My above discussion is also for general purposes. Each client’s particular situation, and the applicable state law, need to be considered before including or excluding any such preventive provisions.

The Misdirected Framing of a Defense Argument in the Arbery Case

The blog post points ultimately below to my continuing, strong criticism of Gregory McMichael, Travis McMichael, and William Bryan’s inevitable defensive attempts to turn the table on Ahmaud Arbery and make Arbery out as the aggressor, against whom Travis McMichael was the victim who had to defend himself by fatally shooting Arbery three times with a 12-gauge shotgun.

I am not going to repeat details of this McMichael / Bryan killing here that are more than abundantly available in the media and on the web. The point I wish to make is to urge readers not to allow themselves to get pulled into this “Arbery-aggressor” argument. In my opinion, it is a misdirected framing of an argument the defense attorneys hope they can spin as a winning theme for the McMichaels and Bryan.

In short, and based on my review of the recent Arbery probable cause court hearing videos, the McMichaels / Bryan attorneys are (not a surprise) beginning to advance their self-defense argument, as follows: That is, just moments before Arbery’s death, Arbery “squared up” in a fighting stance and attacked Travis McMichael, who was standing by the side of his pickup truck brandishing a 12-gauge shotgun. Travis McMichael felt he was in threat of bodily harm and shot Arbery in self-defense. Travis McMichael’s attorney refers specifically to this defensive argument in his Closing Arguments during the recent probable cause hearing. Click here for a YouTube video of the Closing Arguments (listen, in particular, to the first 60 seconds).

Don’t fall for this misdirected framing of a defense by the McMichaels / Bryan attorneys. This defense is deja vu of the argument that enabled George Zimmerman in 2012 to walk free from his killing of Trayvon Martin.

I strongly criticized the 2012 Zimmerman acquittal because, in my opinion, when Zimmerman moved forward in order to hunt for Martin as part of Zimmerman’s attempt to investigate and find Martin, etc., all bets should have ended at that point for any “self-defense” or “stand-your-ground” argument for Zimmerman. In my view, when Zimmerman took it upon himself to make a move toward Martin to find him, etc., Zimmerman became the aggressor with no basis thereafter for a self-defense or stand-your-ground argument. Below is a simple example in line with my argument that Zimmerman became the aggressor.

Assume my wife and I are walking down the sidewalk at night. Some guy walks past my wife and me and appears purposely to bump into me with such force that I fall down on the ground. The guy keeps walking away from us. But, I reverse my direction, brandish my handgun, and chase down the guy; he “squares up” and moves in my direction aggressively to hit me; I shoot and kill him with my gun.

Now, in this example, one might argue this guy was the aggressor when he bumped into me, or when he “squared up” toward me, etc. However, I am the first aggressor relevant to my use of the gun. I am, therefore, the aggressor with the gun. My killing of the guy, in this example, likely would not have occurred (i) as he was walking away from my wife and me in the opposite direction, and (ii) I intentionally changed my direction and went after the guy while brandishing (and ultimately using) my gun.

I believe the example above with my wife and me is sufficient to convey my point contrary to the McMichaels / Bryan defensive framing of the issue. The McMichaels / Bryan were the first (and only) aggressors with the guns. It is entirely unreasonable to try and cast Arbery as the aggressor for purposes of the underpinning of the defense lawyers’ self-defense argument.

Finally, as a broader notion, assume you have a 25-year old son. Your son has been chased for approximately four minutes by three grown men using two vehicles. Your son becomes essentially trapped by the three men, and is likely so exhausted he can no longer run. One of the men is out of the truck brandishing a shotgun at your son.

As yourself these two questions: (i) what in that moment do you believe your son would have done?, and (ii) what in that moment should your son have done? In answering the second question, and now that we know Arbery is dead, can you realistically — with full conviction not affected by hindsight — state that in that moment your son should have simply put his hands up and surrendered?

As an aside, I certainly believe your son should put up his hands in any situation where the police are the pursuers. But, key to the Arbery case is that the McMichaels and Bryan were not police, were not dressed in law enforcement uniforms, were chasing Arbery in pick-up trucks; and were brandishing weapons; they, likely from Arbery’s perspective, appearing to be taking no survivors in their aggressive, exhaustive, two-vehicle corralling of him. Click here for my previous Arbery post about this vehicle corralling.

My ending point: Your framework for how you view this Arbery case should start at a point well before the defense lawyers’ efforts to have you too narrowly see this case only as a self-defense “squaring up” moment before Arbery’s death.

Ahmaud Arbery’s Death: The Tragic Four-Minute “Citizens Arrest” Chase (revised 5.26.20)

This post centers on Gregory McMichael, Travis McMichael, and William Bryan’s apparent four-minute vehicle chase in Georgia that ended in the tragic death of Ahmaud Arbery; and, in my opinion, that fails to any extent to fall within Georgia’s “citizens arrest” statute. I will soon write a second blog post with more details about the inapplicability of this citizens arrest statute.

My underpinning for today’s blog post is a recent May 16, 2020 video in the web version of the New York Times, captioned “Ahmaud Arbery’s Final Minutes: What Videos and 911 Calls Show”. Click here for a link to this NYT video. This video is a reconstruction of the 12 minutes prior to Arbery’s death, based on the construction site security camera, cell phone information, and 911 call data.

Below are the points I wish to make with this blog post.

One. This NYT video shows, quite shockingly and extremely painfully, how Ahmaud Arbery apparently was chased by one vehicle driven by Gregory and Travis McMichael, and by a second vehicle driven by William Bryan, before being trapped by all three men and ending with Arbery’s tragic death.

More specifically, the McMichaels and Bryan appear — in this NYT video reconstruction for a period of approximately four minutes — to have used their two vehicles to chase and trap Arbery. Arbery — running on foot from the two vehicles — apparently changed his direction twice in unsuccessfully avoiding getting overtaken and trapped. This apparent four-minute vehicle chase is not information I was aware of until seeing this NYT video.

What also jumped out to me powerfully from this video is that the McMichaels and Bryan appear to have twice turned their vehicles around along the roadway in their ongoing four-minute trapping of Arbery. The first of two reversals by the McMichaels is when Gregory McMichael apparently jumped from his truck cab into the bed of his truck and began wielding a .357 handgun as the chase for Arbery continued. In this NYT video William Bryan was apparently the first in this chase to reverse the direction of his vehicle as he continued to pursue Arbery, followed with a similar reversal by the McMichaels.

Two. My second point here is my own subjective perspective. It stems from my having lived in Atlanta my entire life. And, my observation in Georgia of the still-present deep level of racial prejudice, especially by many in the age 60+ range. And, no better than the overt racial views I observed in Georgia as a child during the 1960s is what I perceive at present to be a quiet, unspoken, “wink-wink”, still-deeply-seeded racial prejudice in Georgia. These are individuals who either are too cowardly to be candid and forthright in acknowledging their racial prejudice, or who have no interest in facing squarely a need to stop and challenge themselves about why and whether they are willing to contemplate a more-evolved perspective.

Three. This last point goes to the appearance of recent Facebook posts and web references in which individuals are placing the criticism and blame of this tragic killing on Ahmaud Arbery. To the contrary, I consider blame directed at Arbery to be nothing more than a premature, knee-jerk attempt to support a preconceived, racially-biased conclusion against Arbery.

So, please take a moment to ponder what your innermost race-factor reactions are to this Arbery killing, especially the apparent four-minute chase factor in the above NYT video. Ask yourself if you are jumping immediately to conclusions against Arbery, such as “Arbery had tattoos and looked like someone who is a criminal”; “Arbery had an afro [or dreads, etc.]”; “Why was Arbery running if he didn’t do anything wrong?”; “Arbery should not have walked into that house construction site”; or, “Why did Arbery resist if he was not doing anything wrong?”, etc. Or, is your reaction a passive acceptance simply that “This is what happens when a black man tries to run. Arbery should not have run.”

My forthcoming blog post will show, quite persuasively from my view as a lawyer, zero support for the McMichaels and Bryan being able to rely on the Georgia “citizens arrest” statute as a winning defense for their actions. These three men possibly may have thought they were properly making a citizens arrest, but whatever they thought likely was powerfully, and tragically, motivated by their own preconceived and prejudicial attitudes and beliefs about blacks, especially a black man running.

Revision today 5.26.20 — This NYC Central Park incident just in today illustrates very well the embedded racial bias we as a society collectively need to acknowledge and address, directly and with a receptive spirit. Click here for the update.

A Quarantine Pastime: Listen to Georgia Court of Appeals Oral Arguments (on the Internet)

The title to this blog post is probably not stopping many readers quickly in their tracks to see what it is about.  I understand.  The blog title also is likely not edge-of-seat dinner party fodder.

Nonetheless, I generally each week read the current Georgia appeals court opinions so that I can keep up with the broad range of legal issues, changes, developments, etc. Today, among the recent opinions I read, is the March 11, 2020 opinion in Doe v. State. Click here for a copy of the Court of Appeals opinion. Click here for the website link for the related appeals court oral argument for Doe v. State.

Briefly, the above Doe v. State does not fall within my area of law practice;  but, deals with an individual who was acquitted of certain felony criminal charges and who sought to have his record expunged under the procedures of O.C.G.A. Section 35-3-37.  Here, however, is one general take-away point from this particular case. A person’s arrest record (even if not ultimately convicted) remains a public record unless the person can sucessfully get his or her record removed under these procedures.  I chose this Doe v. State for this blog post simply because it is the opinion I last read this morning among the recent opinions from the past week.  It is essentially my random selection for purposes of writing this blog post.

My suggestion, however, especially during our long, home-bound quarantine days, is that readers might find very interesting the Georgia Court of Appeals website with the audio-video recordings of the appeals court oral arguments.  This is where the lawyers stand before the Georgia Court of Appeals judges (typically three judges) and present an oral (verbal) argument to try and convince the appeals judges to see the case their way.  The judges often prod the lawyer’s argument with point-on questions, comments, requests for clarification, etc.

Very briefly as background information, litigation cases can sometimes “go up” on appeal with the appeals court having the power generally to determine whether to affirm the lower court’s decision of the case (typically the trial court); to reverse the lower court; and/or to remand the case back to the trial court. Keep also in mind when a matter goes up on appeal that the lawyers cannot for the appeal add any additional evidence, testimony, documents. There are various levels of state and federal appeals courts (e.g., Georgia Supreme Court; The Federal Court of Appeals for the Eleventh Circuit;  the U.S. Supreme Court, etc.).

The purpose of this blog post is not to elaborate further on the procedure, structure, and design of appeals courts.  But I do point out that any case on appeal is as good as it can get at that point of the appeal, depending on how well the trial court lawyers put on, and preserved, the appropriate evidence and how well they procedurally — during the trial — preserved the disputed legal questions for the appeal (This all gets into the procedural details I purposely do not include in this blog post).

Now, back to using the above Doe v. State as an example. I find virtually all appeals arguments very compelling and instructive for the following three primary reasons:

One. The Georgia Court of Appeals allows only 15-minutes of oral argument for the lawyers who represent each party in the case. This is each lawyer’s opportunity to try and hone down — convincingly — the essence of his or her 15-minute appellate argument in a focused, understandable, concise, and persuasive manner.  Keep in mind the lawyers have already previously filed written summaries of their appeals arguments (called Briefs).

This limited 15-minute oral argument means, from my liking, that the 15-minute argument compels the lawyer to get immediately to the heart of the matter without blustering, grandstanding, sidestepping, and purposeful obfuscation. By contrast, these run-of-the-mouth factors are what we lawyers (and clients) too often hear from opposing lawyers in other contexts (phone calls, discussions, trial court hearings, mediation, etc.).  I greatly enjoy the relief of brevity for these 15-minute appellate arguments.

Two.  The boiled-down directness of the lawyers’ arguments, and most often with to-the-point prodding and questions from the appeals judges, give us listeners an audible pathway directly to the heart of the issues, along with the crux of what the appeals judges are considering from their perspective. In my view, listening to these oral arguments is better than CLE (continuing legal education) in that I get can grasp and consider the essence of the issues in 30-minutes or less.  And, in a real-world context.

Three.  The appeals process (in any appeals case) often highlights the deficiencies in how the lawyers conducted the lower-court trial, particularly the existence of insufficient evidence for consideration on appeal, etc. Every appeals court opinion (and the oral arguments) provides great learning material.

Go back above and click the oral argument link.  Will cost you only 30 minutes of time.

Audio-Visual Remote Notary Allowable Now in Georgia (updated 4.15.20)

This blog post now includes an April 15, 2020 update, that I set forth at the bottom of this original post.  Immediately below is my original post.

Georgia Governor Kemp, on April 9, 2020, signed an Executive Order allowing lawyers (or a Notary under the supervision of the lawyer) to sign documents remotely as a Notary Public, with the following requirements:

(1)  The lawyer as Notary (or his or her supervised Notary) participates as the Notary Public by a real-time audio-visual means (Zoom, etc.) along with the individual(s) whose documents need to be notarized;

(2)  The Notary during the audio-visual meeting reasonably verifies the identity of the individual whose signature is being notarized;

(3)  The Notary actually witnesses the person sign the documents while the Notary and individual are together connected to the audio-visual meeting;

(4)   The Notary must physically be in Georgia while participating in the audio-visual meeting (see my additional comment further below about this participation point);

(5)   The documents have to be physically delivered to the Notary on the same calendar day of the audio-visual signing so that the Notary can add his or her notary stamp and signature to the documents.

The Executive Order allowing this remote Notary set-up expires either when the Georgia Covid-19 State of Emergency ends, or if the set-up is otherwise terminated earlier.

Click here for a copy of this Georgia Executive Order.

My Additional Observations about this Executive Order

This Executive Order applies only to lawyers who are Notaries, or non-lawyer Notaries supervised by the lawyer.  A non-lawyer Notary — but only if supervised by a lawyer during the audio-video meeting –can notarize documents under this remote order.

The remote set-up must include both audio and video.   My reading of the Executive Order is that it does not apply merely to audio calls.

The Executive Order allows this remote audio-visual set-up for any act that can be performed by a Notary under the Georgia notary statutes, including a Notary attestation to a sworn statement;  but, of course, for documents requiring a sworn oath, the Notary must take the individual’s oath over, and during, the audio-visual meeting.

The Notary must physically be in Georgia while participating in the audio-visual meeting. The Notary (whether lawyer or supervised Notary) must be a current, active Notary Public.

The lawyer (if not a Notary) along with his or her supervised Notary must each participate (but can be in different physical locations if necessary) in the audio-visual meeting so that the attorney can supervise the non-lawyer Notary as needed for the audio-visual documents, meeting, etc.

Finally, in my opinion, the following is an important soft spot in this Executive Order that warrants your attention.

Where Can the Individuals Signing the Document be Located?

The Executive Order does not address whether the individuals (other than the Notary) signing the documents must be present in Georgia during the audio-visual meeting.

IMPORTANT NOTE: The April 15 update below only partially touches on my concern about the location of the individuals signing the documents. The update appears to suggest the individuals and non-notary witnesses signing the documents “should”  be present in Georgia during the audio-video call. The update reiterates the point that the Notary “must” be in Georgia during the audio-video call.  I suggest readers continue to think about the concern I state below in situations where the individuals signing the documents are not in Georgia during the audio-video call.

This location-of-the-individuals remains, in my opinion, a gray area of the Executive Order. Assume, for example, the individuals signing the documents during the audio-video meeting are in New York;  the Notary is a Georgia Notary physically in Georgia during the meeting.

In short, I am not comfortable recommending — in every instance — this Georgia Notary remote set-up when the individuals signing the document are not physically in Georgia during the audio-visual meeting.  If the individuals are not physically in Georgia, there may later arise questions about whether the state law other than Georgia will recognize the Georgia remote notarization (e.g., if the document is a a sworn, notarized document, or governed by the law of a state other than Georgia). Arguably, other non-Georgia states should recognize the Georgia remote Notary order under the doctrine of comity, etc.  But, I simply do not believe the answer is unequivocally clear so as to apply this Georgia remote notarization procedure in every situation.

Update Below 4.15.20 — Now Answers the Above Soft Spot

My above original version of this post is dated April 13, 2020. Today, April 15, 2020, the State Bar of Georgia issued additional clarifying details about this remote notary situation. The additional detail is very helpful and well-presented.

Click here for a link to the Georgia Bar additional material.

I do not summarize all of the additional material. But, below are five key points from this additional material that supplement my above post :

(1)   The individuals signing the documents must be present in Georgia during the audio-video meeting (along with the Notary having to be present in Georgia for that meeting);

(2)   The Notary who participates in the audio-video meeting does not have to be an employee or agent of the lawyer;  but, in all cases with these audio-video meetings the lawyer must be present on the audio-video meeting so as to oversee and supervise the Notary;

(3)   The Georgia State Bar recommends that any documents signed under this audio-video remote set-up include the following caption at the top of the document:

Notarized Pursuant to Executive Order 04.09.20.01

(4)  And, that the Notary’s signature block include: “This [name of document] was notarized pursuant to Executive Order 04.09.20.01 using [insert technology name; Zoom, etc.] as real-time audio visual communication technology.”

(5)  The additional material includes also an embedded link for suggestions from the Georgia Fiduciary Law Section about executing estate planning documents under the Executive Order.   I highly recommend estate and trust lawyers read this additional information, which also includes well-stated, thorough  recommendations.

Estate Planning and Your Lawyer’s Bias

We are each inevitably biased based on our own life experiences, education, community and family values, etc.  The key in any discussion about bias is whether we are able, or willing, to step back and try more objectively at times to observe our own bias.

This blog post is my recommendation that you be aware of your lawyer’s own bias and how it may possibly influence your estate planning.  I provide below only limited examples. But, my broader point is for you, as a client, to feel comfortable questioning and challenging your lawyer’s recommendations for the design of your estate planning.

Example One — My experience is that an abundance  of estate planning documents I have read over the years include a descendants-only feature in the event, for example, a child (we will call her Susan) dies, who at her death has no children.  In this event, this typical descendants-only provision requires that Susan’s share of the property now is to be divided only among her other siblings (and their descendants). This provision is designed to make sure Susan’s parents’ property passes only along the parents’ line of descendants. It does not include spouses of those descendants.

Carrying this Susan example further, assume Susan had been happily married for 20 years to Bob at the time of her death. Remember, Susan had no children. Bob always fit in well with all the family members, including Susan’s parents. But, with this descendants-only provision at Susan’s death, Bob gets nothing.

I am not suggesting Bob should or should not get anything. My point is that most lawyers do not address this situation adequately with clients and often use the “descendants-only” language in the estate planning document as a matter of habitual rote. I also believe many clients would be shocked to learn there are no options for a spouse under a circumstance similar to this Susan example.

Maybe your lawyer has himself or herself had a bad divorce in the past;  or had a sibling or parents who experienced a painful and costly divorce. This is an example of the lawyer’s own experiential bias that can make its way into your estate planning documents — without sufficient discussion with you about other available options.

Example Two — To my “lawful” descendants is a term I still see frequently in estate planning documents that I believe may stem from the lawyer’s own bias (religion, community, political, etc.) and that is not sufficiently discussed with clients.

Here is what you need to know about this “lawful” reference to make sure you agree or disagree to use that term in your estate planning documents. Again, my point is this reference and its potential effects demonstrate another example of rote-mentality, too often not sufficiently discussed with clients. Here is an example:

Let’s assume I have a daughter who has a young son, but she is not married to the other parent. Assume also that we all love and treat that son (a grandchild in this example) fully as a family member with absolutely no distinction as to my daughter’s non-marital status.  Assume also my own estate planning documents provide for my property to be divided and held in trust only for my “lawful descendants”. Assume also I die, in this example.

It is my opinion that my grandson (in this example) is most likely cut out of my estate plan because he is not a “lawful” descendant. Technically, he was born out-of-wedlock at the time of my death. Also, arguably this non-wedlock status is locked-in at the time of my death relevant to the “lawful” definition in my documents. I do not believe my daughter’s subsequent marriage — after my death — to the other parent cures this problem.

More importantly, I would hate for my family to face the above problem, including costly efforts to try and convince a court, etc., to include this grandson as a descendant for purposes of my estate planning.

In other words, the modifier “lawful”, in my view, does nothing more than set the stage for disagreement, disputes, and legal issues as to whether I intended to leave out my grandson with my use of that modifier in my documents. Courts are generally bound by the wording within the four-corners of estate planning documents. The term “lawful” simply creates far more problems than benefits for an estate planning document.

For those of you who wish to read more about the potential limitations of this “lawful” element, click here for a relevant 2010 Georgia court opinion in Hood v. Todd, 287 Ga. 164, 695 S.E.2d 31 (2010). Note also the dissenting opinion, indicating even the court had difficulty in determining what “lawful” meant in this case.

My recommendation is that your estate planning documents include a more expansive provision for the definition of “descendants” so as to bring the definition more fully into the light of current cultural and scientific realities. Make sure you discuss with your lawyer and conclude with a clear understanding about the final “descendants” definition in your estate planning documents.

Example Three — I remain surprised at the extent to which I see estate planning documents that fundamentally treat males and females differently. For example, the estate plan might provide for greater outright provisions for a son, but strict trust provisions for a daughter. Or, the estate planning document names only sons as fiduciaries, with the daughters not being named for these positions.

Again, I am not suggesting a right or wrong approach. But, in my experience, this is an area with a great deal of old-school lawyer bias, and without sufficient informed dialogue and consent from clients.

The Boding Danger of the Trump Impeachment Process

This blog post is merely to provide my key thoughts about this Trump impeachment process from my lawyer perspective.  I also realize my perspective is only one of millions.  It realistically has no more weight among all other views than a grain of sand.  But, nonetheless, I voice my comments not for purposes of stating my position one way or the other about what I believe should have been, or will be, the conclusion of this present impeachment effort.

Rather, I express my great concern about the persistent chipping away — for the past 40 years or so — of the sanctity of our three-branch system of government.  Our system appears to move each year toward a myopic vision of a simple-minded, one-party political system of government, blind to the three-branch element (regardless of which party).

And, I do not use the word “sanctity” in any sense of religion, morality, or political party; but, more importantly, from my great and deep respect for the ultimate importance and inviolability of our three-branch system.  In my view, the longstanding success and freedoms we have in the United States rest on the three-branch system of checks and balances. This, in my opinion, is the primary reason our country has succeeded during its long test of time.

Here are my key comments:

(1)  The House blundered, tainted a key underpinning of their procedural process, and by doing so failed to respect our three-branch system of government by not seeking judicial review of (or by not issuing) House subpoenas.  A fundamental element of our great freedom in the U.S. is the ability to obtain judicial review when we are subpoenaed and assert grounds for objection to the subpoena or to the scope of the subpoena. The government (including the House) also has the ability to obtain judicial review and assistance in determining the necessity and scope of a subpoena.  For you historical legal readers, the first U.S. Supreme Court opinion addressing House subpoenas was in 1880, in Kilbourn v. Thompson, 103 U.S. 168 (1880).  Click here for a copy.

(2)   President Trump’s blanket snubbing of the entire process of subpoenas and witnesses is itself another serious failure to respect the sanctity of our three-branch system of government.

I wrote a blog post a few months ago about the Richard Nixon subpoena situation. Search “Nixon” in my blog search above. I repeat, now again, essentially what I said in my Nixon post. That is, the following question my constitutional law professor at Emory Law School (in Atlanta) posed to our first-year law class many years ago, which I have never forgotten: “If President Nixon had refused to comply with his subpoena, we would have experienced an extremely serious (and still-unanswered) constitutional crisis that would have substantially stress-tested our three-branch system of government. And, possibly the system would have failed. The crisis would have centered on “Who would, or can, force President Nixon to comply with his subpoena?”

Keep in mind the Nixon subpoena had been issued by the Department of Justice, a part of the executive branch (not issued by the House).  Thus, if Nixon, as head of the executive branch, opted not to have his own executive branch enforce his subpoena, who would have acted to enforce it?  Our Emory constitutional law professor posed the possibility of a military coup, or military tanks rolling up to the front of the White House, to step in and take over the enforcement effort, etc.

(3)   I, candidly, have always been concerned the U.S. would not have withstood the above Nixon constitutional crisis if it had been pushed to an ultimate limit, nor recover minimally unscathed. This is the reason that particular law school class discussion is burned deeply into my consciousness. I truly believe the above Nixon crisis could have effectively dismantled, or substantially damaged, the longstanding balance of our three-branch system of government. One political party would have won the battle, but we all would have lost the war.  A crucial question we each should consider at every juncture of our own respective political moves and attacks is whether we are helping to sustain, or erode, our three-branch system of checks and balances.

(4}   We each, therefore, should also ponder seriously how all facets and participants leading up to this current Trump crisis have, or are, affecting this balance.  And, we need to rethink everyone’s relative contribution to this situation.  As an aside, I  believe Nixon understood his tremendous constitutional crisis for our country, leading ultimately to his voluntary compliance with the subpoena, and ultimately his resignation.

(5)   Back to my statement above about the success of the U.S. being based on the three-branch system of government. In my view, I do not care where one places himself or herself on a religious, moral, or political spectrum. That is one’s gift of liberty, and personal prerogative. However, the substitution of a controlling element of religion, morality, or politics, etc., as a decisive or tipping-point factor sidestepping our three-branch system of government places far too much power with, and simply by the whims of, those asserting — at any given time — their majority religious, moral, or political views.  Keep in mind, everyone once knew the earth was flat.