Insights | Blog | Stacey Romberg

But Mom said this was Mine!

07.23.2019 by Stacey Romberg //

Most attorneys who represent clients in probate and estate administration will say the same thing: The most bitter and protracted family disputes are not, at their core, about money. Instead, families can spend exorbitant amounts of time and money in attorneys’ fees, and sometimes forever destroy relationships, fighting over the deceased’s treasured personal property items: the family china, an old photo, a favorite locket necklace. Even when these items may not possess much monetary value, they may hold great sentimental value.

RCW 11.12.260 provides guidance for how to avoid these disputes by distributing your personal property upon your death through a writing, often referred to as “Personal Property Addendum.” What is a Personal Property Addendum? RCW 11.12.260(1) states:

(1) A will or a trust of which the decedent is a grantor and which by its terms becomes irrevocable upon or before the grantor’s death may refer to a writing that directs disposition of tangible personal property not otherwise specifically disposed of by the will or trust other than property used primarily in trade or business. Such a writing shall not be effective unless: (a) An unrevoked will or trust refers to the writing, (b) the writing is either in the handwriting of, or signed by, the testator or grantor, and (c) the writing describes the items and the recipients of the property with reasonable certainty.

For example, John’s Will contains a Personal Property Addendum. The Will itself specifically refers to the Addendum. John handwrites the following in the Addendum: “I give my Wilson tennis racket, autographed by Roger Federer, to my niece Joanne Smith.” Since this writing is in the handwriting of the testator and describes the item and the recipient with reasonably certainty, this distribution is valid pursuant to Washington law.

What types of contingencies can occur in relation to the Personal Property Addendum? RCW 11.12.260(2) states:

(2) The writing may be written or signed before or after the execution of the will or trust and need not have significance apart from its effect upon the dispositions of property made by the will or trust. A writing that meets the requirements of this section shall be given effect as if it were actually contained in the will or trust itself, except that if any person designated to receive property in the writing dies before the testator or grantor, the property shall pass as further directed in the writing and in the absence of any further directions, the disposition shall lapse and, in the case of a will, RCW 11.12.110 shall not apply to such lapse.

Using the example above, if Joanne predeceases John, the gift of the Federer racket will lapse. The Federer racket will instead be distributed as part of John’s residuary estate as set forth in his Will.

Suppose you change your mind about who should receive the personal property item? RCW 11.12.260(3) states:

(3) The testator or grantor may make subsequent handwritten or signed changes to any writing. If there is an inconsistent disposition of tangible personal property as between writings, the most recent writing controls.

Using the example above, if John has a fight with Joanne, he can cross out the distribution to Joanne in the Addendum and instead handwrite: “I give my Wilson tennis racket, autographed by Roger Federer, to my nephew Martin Smith.” This revised distribution is allowed under Washington law because revisions to a Personal Property Addendum do not need to meet the same execution requirements as revisions to a Will.

Finally, it is important to use the Personal Property Addendum only in relation to distributing personal property. RCW 11.12.260(4) states:

(4) As used in this section “tangible personal property” means articles of personal or household use or ornament, for example, furniture, furnishings, automobiles, boats, airplanes, and jewelry, as well as precious metals in any tangible form, for example, bullion or coins. The term includes articles even if held for investment purposes and encompasses tangible property that is not real property. The term does not include mobile homes or intangible property, for example, money that is normal currency or normal legal tender, evidences of indebtedness, bank accounts or other monetary deposits, documents of title, or securities.

Do you have any questions about using a Personal Property Addendum? We’d be happy to help!

Good Estate Planning Includes Caring for, Not Euthanizing, Your Pets

07.09.2019 by Stacey Romberg //

pet-estate-planning-seattle-washington Recently, I noticed a disturbing article in the news “Healthy dog euthanized in Virginia because owner wanted it buried with her.” The article stated in part:

A healthy dog was put to death in Virginia at the behest of its owner, who made the request in her will. The owner of Emma, a Shih Tzu mix, died March 8. Her dog was held at the Chesterfield Animal Shelter before it was picked up March 22 and then euthanized, NBC affiliate WWBT in Richmond first reported. Heartbroken animal shelter officials said they had no choice but to turn over Emma to the estate executor, even knowing what was going to happen to her. . . . Emma’s owner, Anita Cullop-Thompson, 67, wanted to be interred with her pet, Morrissett Funeral and Cremation Service owner Larry Spiaggi told NBC News.

Don’t assume that your pet will be unable to adapt after your death. For example, earlier this year, I traveled to Australia. I was gone for several weeks and left my cat, Roger, at home, with a cat sitter looking in on him daily. Roger and I had never been apart before for such a long period of time. Roger, like many cats, tends to be aloof to strangers. At the beginning of my trip, Roger behaved in a very standoffish way toward the cat sitter. But, over time, Roger adapted to my absence. He began to walk over to cat sitter when she arrived, rub against her legs, and seek attention and affection. Animals, just like people, adapt to new circumstances and situations. Simply put, sentencing a pet to death when you pass away should not be a part of your estate planning.

My firm works with our clients in order to create pet friendly estate planning options – including drafting pet trusts or, more informally, putting provisions in Wills to clarify who will care for the pet and ensure that adequate funds exist to assist that person in meeting the costs associated with pet food, supplies and veterinary care. Many options exist to provide for quality care for your pets after your death. Even if you do not have a family member, friend, or neighbor who would gladly welcome your pets into their families, organizations exist to assist in finding new homes for pets who have lost their owners, including no-kill shelters and rescue organizations.

More information concerning our estate planning work related to pets can be found here: https://staceyromberg.com/estate-planning-washington-state/pets-in-estate-planning/. We will assist you in creating an estate plan that helps you and your pet to be together every day that both of you are alive; but when you pass, part of your legacy will be creating a positive situation in which your pet can move on, adapt, and continue to live a happy life in new home.

“Murder Mystery” and the Trouble with DIY Wills

06.25.2019 by Sherry Lueders //

estate-planning-and-wills I love it when estate planning features prominently as a plot device in movies. The Netflix summer popcorn movie “Murder Mystery” (starring Adam Sandler and Jennifer Aniston) is an old-fashioned estate planning whodunit. The plot kicks into gear when billionaire Malcolm Quince makes a grand entrance aboard his yacht and abruptly announces to the family members, protégés, and hangers-on he has gathered together that he is about to change his Will and disinherit everyone except his much-younger fiancée. Quince then waves a wad of paper in the air that is be presumed to be the new Will, sets it down on a table, and pulls out a pen to sign. Suddenly, the room is plunged into darkness and a series of screams and scuffles ensue (with a debt to the greatest whodunit farce of all time, Clue). When the lights flicker on, Quince is dead. (Cue dramatic music.)

While there is a lot wrong with this scene, I am going to focus on what went wrong from an estate planning perspective.

Failure to consult an attorney. Did Quince consult his attorney to update his Will? We don’t know, but I’m going to go out on a limb and say probably not. It seems unlikely that, had he consulted his estate planning attorney about the changes he wanted to make to his Will, he would have helicoptered onto a yacht in the middle of the Mediterranean with an unsigned copy and plans for a dramatic description of its contents. At the very least, the attorney likely would have encouraged him to sign the Will before his trip. In addition, an attorney would have discussed estate tax implications of the proposed plan, recommended some type of prenuptial agreement with his fiancée that includes basic requirements for testamentary gifts, and perhaps suggested testamentary trusts for his son and others dependent upon his largesse.

Failure to pay attention to execution requirements. Washington law, for example, imposes very specific execution requirements in order for a Will to be valid. RCW 11.12.020 provides that a testator must sign a Will in the presence of two competent witnesses who themselves sign an attestation clause that meets requirements set forth in a different section of RCW Title 11. It is unclear whether Quince paid any heed to execution requirements for the Will, or even whether he knew which jurisdictional requirements applied. In addition, a person executing a Will must have the capacity to do so for the Will to be valid. Did Quince lack capacity to sign a Will? We don’t know, but it is likely that his family could have made a viable argument that he lacked capacity, considering the questionable circumstances of the Will’s execution.

Failure to pay attention to jurisdictional requirements. Jurisdictional requirements matter in probate and trust law. Different provisions may be included in a Will depending upon the state or country in which you reside and where you own property. When you throw in variations in execution requirements for Wills in different countries, the matter becomes even more complex. Quince was ostensibly a British citizen, signing a Will in the Mediterranean en route to Monaco. Was his intent to execute the Will under the laws of Great Britain? Monaco? Another country where he owns property? These are questions he – or his advisors – should have considered. (Interestingly, one character does mention that his plan would have been foiled had he been French and prohibited by law from disinheriting his son.)

Quince undoubtedly wanted to cause a stir by staging a surprise signing for his Will, and his flair for drama resulted in his demise. Had he lived long enough to sign that Will, it is questionable whether that Will would have been valid, and likely that it would have led to prolonged litigation among the beneficiaries. “Murder Mystery” is a fun summer farce, and Quince must die to move the plot forward. While it is not advisable to take anything involving Adam Sandler too seriously, the movie does provide a dramatic – and comic – example of what can go wrong with a “gotcha” DIY Will.