Oregon Elder Law: The Oregon Courts, the Department of Veterans Affairs and the problem of competing fiduciaries.

This is a complicated post. You may want to review my earlier posts on guardians, conservators and professional fiduciaries if you aren't comfortable with those concepts..

In my practice I run into three types of fiduciaries. There are social security rep payees. There are state court appointed conservators and there are fiduciaries appointed by the US Department of Veterans Affairs (USDVA).

Social Security doesn’t present much of a problem. Social Security will normally honor an appointment of a fiduciary by a state court by making the fiduciary the rep payee for Social Security. That puts the state and federal money in the same hands. Then, when I do an annual accounting to the state court, with a wink and a nod, I include the social security, as if it were subject to state court administration. It is a courtesy to the state court so that judges have a full picture of the protected person's finances.

The problem arises when state appointed fiduciaries and those appointed by the USDVA clash. The USDVA has its own system, and unlike Social Security, the USDVA and the state courts do not always play well together..

In addition to the tension inherent in having two parallel systems, there is often an atmosphere of distrust between those who work primarily in one system or the other. Partisans on the state court side allege that USDVA appointed fiduciaries are untrained, overworked, and unresponsive. Partisans on the federal side allege that state court fiduciaries are arrogant, overpaid and rapacious. I try to stay out of the crossfire, but the partisans are easy to find and can make these cases more difficult than they already are.

The problem for the elders arises when a state court conservator is appointed for a protected person who already has a USDVA rep payee. The USDVA will not normally make the state appointed conservator the rep payee for USDVA funds, so the protected person ends up with two fiduciaries. Two fiduciaries are not better than one, particularly when the two money managers don’t believe the other one truly deserves to be there. It gets even worse if the state court also appoints a professional guardian who wants to be paid by somebody, but isn’t quite sure who. In these cases, every expense has to be negotiated by the two fiduciaries.

Some lawyers believe they can avoid the two-fiduciary problem by having a state court appoint the Oregon Department of Veterans affairs as the state court fiduciary. The theory may be that the two agencies have similar names so they will cooperate with each other. That isn’t necessarily true. The lawyer hopes that the USDVA will make the ODVA the rep payee for federal VA benefits thereby putting a state agency in charge of the federal money. That might happen, or it might not. The USDVA, it seems to me, is particularly reluctant to appoint the ODVA as rep payee for federal benefits if it looks like the appointment of the ODVA was instigated primarily as a strategy to get state control of USDVA payments. In such cases, the USDVA often leaves its own fiduciary in place to manage the federal money. The protected person ends up paying both the ODVA and the USDVA fiduciary.

The situation is complicated by the fact that when amounts over $10,000 accumulate in a USDVA account, the USDVA may (or may not)  ask the local USDVA fiduciary to apply for conservatorship under state law. If the fiduciary is appointed he will thereafter be paid according to state law rather than federal law. For the fiduciary, this usually means a raise. If, however, the USDVA fiduciary is not appointed--say for example the court finds that the protected person is competent or that a different person is more appropriate to serve--then the USDVA fiduciary will continue to administer the USDVA money. Even when the USDVA initiates the proceeding in state court, the state doesn’t get to choose who will manage VA money.

I had one case where the USDVA fiduciary applied to be a successor state law conservator after a family member resigned. After reviewing a visitors report, the court found that that protected person no longer needed a conservator. The USDVA makes its own capacity determinations and ignored the state court ruling. Thereafter the USDVA left the rep payee in place and cut the monthly budget of the veteran because he could now pay his living expenses out of the funds freed up by the termination of the state court conservatorship.

If you have the USDVA involved in your case you have to remember that the USDVA is not bound by state court determinations and regularly ignores them. You cannot subpoena USDVA medical providers as witnesses in state court. The USDVA makes its own competency determinations. The USDVA fiduciaries do their own accounting's each year to the USDVA, accountings which are often disapproved (for sometimes serious and sometimes trivial reasons). USDVA fiduciaries are contractors who cannot voluntarily turn over federal money to family or state authorities and cannot, if they want to keep their contracts, resign as the fiduciary for a particular veteran. All the important decisions and expenditures are made by the USDVA field examiners and the people at the fiduciary hub.

The moral is--I think--that when I get involved with someone who has a USDVA fiduciary, I have to look ahead. I can’t adopt a legal strategy that will create dueling fiduciaries. If all the money in the case comes from Social Security and USDVA, there is no money for the state courts to manage. In those cases I have to be very circumspect about asking for a state law conservator. If I want to change the USDVA fiduciary in charge, I have to tread lightly and use charm instead of bluster. The only way to force the USDVA to do anything is in federal court where the law is stacked against me. The USDVA folks know this. They know I don’t like federal court and my clients can’t afford to go there. The people at the USDVA will, however, listen to respectful and well presented plans that enhance the life of the veteran. And, supposedly, that is what we all want.

Oregon Elder Law: Becoming a Conservator for Your Spouse

As a general rule, when a person's husband or wife becomes incapacitated the capable spouse can handle the financial affairs of both without the intervention of the courts. The combination of joint accounts and automatic deposit of retirement income allows the capable spouse to manage he money for both husband and wife. Sometimes, however, situations arise in which the capable spouse cannot adequately manage the couple's income and assets without help from the courts. In these situations the well spouse may have to seek court help to protect the long term financial security of both persons. Court proceedings by one spouse to be named the conservator of the other create unique problems for the Oregon elder law attorney and the Oregon courts.

Common Situations

Cases in which one spouse seeks court authority to manage the finances of the other fall into two basic types. The first is when the incapacitated spouse owns property in his or her own name that is needed for long term care costs but is unavailable because the incapacitated spouse is incapable of signing the documents necessary to free up the money. The second situation is the one in which one spouse is, as a result of mild dementia or obsessive behavior, wasting the couple's life savings. This, more often than not, occurs in elderly men who become obsessed with spending money on sweepstakes, internet scams, gambling, or crackpot money-making schemes.

What to do?

In situations like the one described above the spouse who is still capable of managing money retains an Oregon elder law attorney to ask the court to make her conservator for her husband. A conservator is authorized to manage the money for the incapacitated spouse, but must carefully account to the court for all of the income and payments made on behalf of the incapacitated spouse. It is a lot of work for the attorney to set up a conservatorship like this and a lot of work for the newly appointed spouse/conservator to keep the records that the court will require.

The problem for the couple, the lawyer, and the courts in these cases is that the couple's income and outgo have usually been inextricably intertwined for many years. Now the court is being asked to oversee the finances of one of them while leaving the other free, like any other citizen, to freely manage her own income and expenditures.

This is easier said than done.

Preliminary Problems for the Spouse-Conservator.

A wife who wants to be conservator for her husband faces the normal problems that face any conservator plus some. First she must qualify to be conservator by being able to buy a bond equal to the amount of money she will be managing for her husband. She must have no criminal record and must be capable of doing the bookkeeping necessary to be a conservator. 

 

If the wife is appointed conservator, she will have to inventory all of the couple's income and property, determining what is jointly owned and what is owned solely by each of them. This inventory of income and assets will determine what the conservatorship will look like.

An Oregon conservatorship of a spouse to pay for long term care.

If the conservatorship was sought because the spouse needed to access assets belonging to the incapacitated spouse for long term care, then the capable wife will need to establish one or more conservatorship accounts and transfer the assets of the incapacitated spouse to that account. If, for instance, the incapacitated husband had a brokerage account in his own name and the money in that account was needed to pay his bill at a long term care center, the spouse-conservator would move the funds in the brokerage account to an account in the name 0f the conservator. The conservator might also have the retirement income of the incapacitated spouse deposited in that account. The long term care costs for the husband could then be paid from that account, and at the end of the year, when an annual accounting was due for the court, the records of that account would show the income and outgo related to the husband's long term care.

There may be other assets that belong to the incapacitated husband that must be disclosed to the court but are not going to be used for long term care. For instance, the incapacitated husband probably owns a one-half interest in the family home. This will have to be reported to the court, but it is unlikely that the home will have to be sold to pay for care (assuming that the capable wife still lives there). Sale of the house, will normally be restricted so that the cost of the bond is reduced, and the capable wife cannot disappear with all of the couple's equity leaving the incapacitated spouse high and dry. If the house needs to be sold, the court order necessary to allow it to happen will not be difficult for your Oregon elder law attorney to obtain.

If the wife/conservator is dependent upon the income of her incapacitated husband, the wife’s lawyer will provide a budget to the court allowing a withdrawal from the conservatorship account—from the husband's income—a certain monthly amount to provide for the wife's needs.

A conservatorship when a spouse is wasting assets.

If a spouse has a cognitive defect that manifests itself in wasteful spending of the couple's income the non-disabled spouse may seek a conservatorship to limit the losses. This kind of mental illness shows up in several forms. Sometimes the spouse is addicted to sweepstakes. Sometimes it is gambling. Sometimes it is phony get rich schemes. In these cases, the spouse with capacity is not usually worried about long term care or getting access to property held in the disabled spouses name. The spouse here is worried about protecting the accumulated wealth of the couple and stopping the bleeding.

If the disabled spouse used credit to fund his wasteful spending there may also be creditors—often credit card companies—wanting to be paid.

In these cases the conservatorship begins as in the previous case, by properly qualifying, getting the bond, and inventorying the income and property of the couple. Then credit card companies, merchants and other possible creditors need to be notified that the disabled spouse no longer has the legal ability to make contracts.

 

In these cases the spouse-conservator is not worried about paying for long term care, but rather about the normal monthly contributions that the disabled spouse makes to the couple's expenses. Once again the conservator should establish a conservatorship account and direct the disabled spouse's income to that account. The conservator should then establish a budget based upon the way bills have been paid in the past and ask the court to approve both the budget and the disabled spouse's share of the monthly expenses. Thereafter, the spouse/conservator will pay the court approved disabled spouse's share from the conservatorship account to the normal household account to be spent according to the budget. In this manner, the day-to-day expenditures by the non-disabled spouse do not become subject to the reporting requirements of the conservatorship. The money left over in the conservatorship account after the monthly contribution by the disabled spouse could be saved or applied for the benefit of the creditors of the disabled spouse.

In the first example, where the spouse started a conservatorship in order to take control of an asset held in the disabled spouse's name, the major monthly expenses of the conservatorship were the disabled spouse's long term care costs and his contribution to the wife's support. In the case of a conservatorship designed to limit the disabled spouse's spending ability, the major and maybe only monthly distribution from the conservatorship account is the payment into the couple's normal household account.

Cost and Value

No one gets a conservatorship over his or her spouse except as a last resort. It is expensive, it is time consuming, and it involves the court in your private family life for years. The annual accounting is difficult to prepare and you will be paying your lawyer for years to come. It is a legal strategy to be taken only when everything else ha failed.

On the other hand, situations arise in which you have no choice. If your husbands rental house, or his brokerage account is in his name alone and you need that money to pay for long term care, you have to do it. If your husband is sending your life's earning to Nigeria, it is far better to pay the lawyer and the court the money it takes to have a conservatorship than to lose everything to internet scams.

How to go about it

Something like this is not a do-it-yourself job. You need an elder law lawyer. The guy who got your cousin out of that speeding ticket is probably not the person to go to. Read my article on how to select and hire an elder law lawyer, bite the bullet and make an appointment. Don't kid yourself either. It is going to be expensive, but if you need a conservatorship it is because there is something very valuable you need to protect. Doing what needs to be done will be worth the cost.

Advance Directives Again

I wrote this as a columnist for the blog, Time Goes By,  a blog about topics of interest to all of us with issues surrounding aging. Although I have written here about Oregon Advance Directives, I thought I would share the article with readers of Oregon Elder Law.

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As I make my way toward the grim reaper, there may come a time when I become so sick that I cannot communicate with those around me. My inability to communicate might be due to a temporary illness, but it is most likely to happen during the last days of life. When I can no longer communicate, I have an advance directive that will talk to family and care givers for me.

 

An advance directive is a legally enforceable document that manages my medical care when I cannot. As long as I can still lift my head from the pillow and make my wishes known, my advance directive is scrap paper but when I can no longer do that, my advance directive controls who makes decisions for me and what treatments I receive.

The name “advance directive” probably comes from the fact that the document is signed in advance of final illness and gives directions, but that isn’t the only name the document goes by.

When documents with a similar purpose first appeared they were called “living wills.” Lawyers don’t like to stray far from what they know. They called it a will because it looked like one.

The next name to come around was a “health care power of attorney.” Once again, lawyers took something they knew, the power of attorney, and adapted it for another purpose. The document has also been called a personal directive, advance decision, health care proxy and probably a few other things.

Maybe the name “advance directive” will stick, but don’t count on it. No matter what they are called, all these documents all do the same thing: they provide family and care givers with instructions for how we want to be treated at the end of life.

The most important part of an advance directive is the appointment of a health care representative. A health care representative makes health care decisions, including decisions about when to pull the plug, when you can’t make them yourself.

This person is the advocate for your wishes when you can’t advocate on your own. In my advance directive I named my spouse as my health care representative. I have told her what I want at the end of life and I trust her to make decisions about my care that respect my wishes.

The second most important part of an advance directive is instructions to your medical providers about the kind of treatment you want or don’t want. These “directives” are addressed to your doctor. My sister is a doctor and I have never known her to take directions, but I filled out this part of my advance directive anyway.

I didn’t have to. I could have stopped after appointing my spouse my health care representative, thereby leaving everything up to her. I can fill out all or part of an advanced directive and, if it is properly signed and witnessed, the part filled out will be legally enforceable.

If you want or don’t want certain kinds of medical intervention at the end of life and you don’t have my sister as your doctor, you make those wishes happen by putting them in your advance directive.

Once you’ve named a health care representative to advocate for you and you’ve told the medical profession what sort of care you want, the heavy lifting is done. One of my favorite advanced directives comes from a nonprofit called Aging With Dignity. It is called Five Wishes [pdf] and may be filled out online. This advanced directive is named for five common wishes about dying.

Like all advance directives, it asks you to name a health care representative and give directions about end-of-life care. It goes on to ask how much pain relief you want (we are talking heavy drugs here), what sort of surroundings you want to die in and what you want your loved ones to know.

The Five Wishes document meets legal requirements for an advanced directive in 42 states, but not here in Oregon where I live. I encourage you to find and use the form that is most common in the state where you live.

You need to take your advance directive with you to the hospital when you go in for treatment and have the nurse or social worker scan a copy of the document into your file. The hospitals don’t like to deal with unfamiliar documents. Don’t stress them out. Bring them what they are used to seeing in your community.

Advance directives can be enforced by the courts if they are filled out and witnessed (or notarized) properly, but court is not where you want to go. If you pay attention to the instructions, particularly those concerning witnesses, you have set the stage for end of life care without resort to lawyers.

Some families are so litigious that no document will keep them out of the courthouse but for most of us, an advance directive provides the framework for end of life care that is lawyer-free.

The advance directive is the only legal document that I recommend for everyone. Most legal documents have risks and rewards that must be balanced. The advance directive, however, presents very little risk and big rewards. The end of life is a time for your family to take care of emotional and spiritual matters, not make appointments with lawyers.

A properly signed and witnessed advance directive does as much as a person can do to ensure that the details of your dying do not end up at the courthouse.

Scandal in the world of Oregon Elder Law Lawyers, Professional Fiduciaries, and the Courts

Steve Duin, a columnist for the Oregonian has published an article about the case of Benjamin Alfano. The case involves a prominent professional fiduciary, Chris Farley of Farley, Piazza & Associates, a prominent elder law lawyer, Richard Pagnano, of the Elder Law Firm, the Oregon Department of Veterans Affairs, and Judge Rita Cobb, the Probate Judge in Washington County.

Despite being represented by a top notch lawyer, poor Mr. Alfano came to a very unfortunate end. Sometimes court proceedings designed to protect elders turn out well for all involved. More commonly the results are mixed. Sometimes they turn out to be a disaster for everybody. Mr. Alfano's case is an example of one of the disasters.

Using a Conservatorship to protect your inheritance.

A conservatorship is designed to prevent a financially incapable elder from wasting his or her money due to deteriorating thinking skills. The socially acceptable motive for rescuing the senior citizen from himself is that the elder may need that money for his own needs, particularly long term care. A child who sees his elderly parent sending her life savings to television evangelists or Caribbean scammers may be legitimately concerned that mom is spending the money she may need for long term care. He also might be legitimately concerned that his mother is wasting his inheritance. This article explores the risks and rewards of using a conservatorship to prevent mom and dad from spending the money their children hope to inherit.

A conservator can be appointed for a person who is “unable to manage financial resources.” This is a wide open door. Conservators get appointed because old women are sending all their money to crooked preachers or old men are spending all their money on hookers. Many times a child seeks a conservatorship because another child is bleeding the parent dry with pleas for money that the kid could earn himself if he had the gumption to go out and get a job. Whenever siblings are involved, there will be the suspicion that the one seeking the conservatorship is less concerned with the well-being of the elder than the well-being of his potential inheritance.

      Can you use a conservatorship to protect your inheritance? Yes. But there are dangerous pitfalls along the way.

      Let's say elderly mom has three kids: Moe, Larry and Curly. Moe and Larry are out in the workplace earning a living. Curly is living with mom and taking care of her and having conversations like this.

“Mother, I baked you a birthday cake.”

“Oh, thank you Curly. You are the only one of my sons who ever bakes me a cake.”

“That's right mother. Moe and Larry don't care about you like I do.”

“What can I do to repay your kindness, Curly?”

“Oh, nothing. I do it out of love. But if you insist on doing something, you could sign over to me all those shares of Microsoft stock you bought in 1985.”

“This is such a nice cake, Curly. Bring me those papers.”

Moe is not happy about this. He reads my blog and knows that one of the best ways to get around a will is to have the elder give away all his or her money before death. In our case, mother's will may split her estate equally between her three children, but if Curly gets his name on on the assets prior to death, there is nothing to transfer by will. Moe and Larry are out of luck.

Moe figures that he will ask that a conservator be appointed for mom on the grounds that she is trading Microsoft stock for birthday cakes, thereby depleting her financial condition for frivolous reasons. He doesn't make the mistake of asking that he be appointed. This would set the stage for a courtroom sibling dispute, which judges never like. He instead will ask that a professional—an neutral independent—be appointed. That way he cannot be accused of trying to get his hands on mom's money himself. Once a conservator is appointed, the professional will make sure that mom's remaining property stays put so that all three brothers inherit it when mom dies. The professional conservator might even be able to get that Microsoft stock back in mom's name using Oregon financial elder abuse statute.

But there is a danger.

The big danger is the mom will be so angry when she receives the papers saying that Moe wants to take her money and give it to a professional—in her mind, a stranger—that she will call her lawyer and tell him to write a new will that disinherits Moe. This happens all the time. Even if a conservator is appointed, mom has the right to have a lawyer and to change her will. The capacity necessaryto write or change a will is far lower than that necessary to manage financial affairs. All mom has to know is the names of her children, what she owns, the fact that she is signing a will, and the effect the will will have. If she knows what she owns, can name her children, and knows that by signing the will she is disinheriting Moe, she has the capacity to change her will. She also has a reason for changing her will; to punish Moe for taking her to court.

A lot of families have a Curly—that son (or daughter) who fails to thrive and spends his life hanging around his parents home and living off handouts from mom or dad. The kids who did thrive don't think much of these family members. Professional fiduciaries dislike them as well and tend to want to separate them from the parent. Parents, however, may love their children equally or even favor the neer-do-well child. By the time one gets to considering a conservatorship there may be in place a stable decades-old family dynamic in which the the parents give extra support to one while the other, more successful children, complain. A child who disturbs this dynamic does so at some peril.

A will signed by a person subject to a conservatorship will always get close scrutiny by the courts. Even if she had the capacity to disinherit Moe, Moe might challenge the will on the basis that Curly used “undue influence” to get her to do it. In undue influence case, the lawyers make lots of money. Judges are successful people and tend to be unsympathetic to folks like Curly who live off their parents. That does not mean, however, that Moe is guaranteed a win. Elders can distribute their estate as they see fit. Giving all the money to the person who was with them the most is neither unusual or unjust.

The moral of this story is that if you want to do the right thing and protect mom from herself, your motives should be pure. If it is truly her that you are thinking about, it should be of no consequence that she disinherits you. If your motives were not pure—you were doing it to prevent your inheritance from disappearing—then you are taking risk. The risk is that your efforts will not be appreciated and you will be disinherited anyway. If you are not disinherited you win. If you are disinherited, you took the risk and lost. 

The Danger of Hiring a Busy Oregon Elder Law Lawyer

On a day-to-day level I deal with a lot of different lawyers, almost all of them Oregon elder law lawyers. These lawyers come in all shapes in sizes. Some are laid back and easy going. Others are high strung and tense. Some are cynical, others are true believers. This range of personalities allows you as a potential client to find a lawyer with a temperament and approach that matches your own. Often a good temperamental match between the lawyer and the client is more important than the lawyers skill or prestige in the legal community. You may want a bulldog for a lawyer, or an intellectual, or maybe a natural-born mediator. But the one thing you never want is a busy lawyer. 

Being busy is not a function of how successful a lawyer is or how much business he or she may have at the moment. It is not a reflection of the lawyer’s commitment to his profession or his family or his community. Being busy is a life-style choice. The busy lawyer was a busy something else before he became a lawyer and has probably been busy since he was ten years old. It is part of his temperament and an integral part to his view of life. It is a personal value, and like the workaholic, the busy lawyer believes in his heart, that his way of living busily is morally superior to the alternatives. I won’t opine on the moral question, but I can assure you that if you need a lawyer who will respond to your needs, you don’t want to hire a busy one.

Busy lawyers fail to return phone calls, take weeks to get your work done, miss appointments, and fail to get their documents written until the last moment. They cost you money when they don’t prepare in time to make negotiated solutions possible. They fail to keep you fully informed of the progress of your case, and they are seldom available when you have questions. They repeatedly justify these behavior's by telling you how busy they are. 

 

Don’t hire these folks. Busy lawyers are never going to become non-busy. It is not a temporary condition, it is personal ethos that the person has developed over a long time. Perhaps, because they are busy, they do in the end accomplish a lot. That does not mean you should let one of them be your lawyer. You want someone who has the time to respond to your needs; someone who will complete your legal work or conduct your case with careful, unhurried consideration. You pay a lot for a lawyer. You shouldn’t put out that kind of money for one who is busy.

When considering who to hire as your Oregon elder law lawyer, I suggest asking directly about their busy-ness. “How busy are you?” “Will you be available to answer my questions?” “Do you have ample time to do the work necessary in this case?” The answer will give you a look into the the way the lawyer operates. If the lawyer is very busy and seems proud of it, go elsewhere. If the lawyer is very busy, but can assure you that it is a temporary condition brought about by her poor time management—a condition that will be remedied in the near future—consider the person. If the person is not busy and seems to manage time in a way that will always leave some of it for you, you may have a winner. You want a lawyer who has the time, the inclination, and the ability to carefully conduct your case, one who will return your calls and answer your questions, one who takes her time with life and her cases. Let the busy lawyer change the world, but don’t put him in charge of your case.

Anatomy of an Oregon Will

The old estate planners used to say to me, "no matter how much the clients want it, there is no such thing as a simple will." I didn't believe it. I figured it was just one of those things people say to make what they do for a living seem a little harder and more complicated than it really is. Reluctantly, as the years go by, I am coming around to their point of view.

There may be no such thing as a simple will, but there is such a thing as a short will. My average will for a middle class older couple with adult children is two pages long. The will is written in English and has no clauses that a high school graduate couldn't understand. Nevertheless, it is not simple. Each sentence, each paragraph, has a distinct purpose. I explain these purposes over and over again in my office, so I thought I would do so here.

For whom is the will written?

This is widely misunderstood. Every written document, whether a newspaper of a business contract, is written for an audience. The audience for will is not the relatives of the deceased, it is the probate judge who will oversee the wills administration. A remarkable number of people do not understand that a will is not self-executing. The power to administer the will comes from the court. You may be nominated in the will to be the executor of your mother's estate. The nomination is a request that the court appoint you. The court will try to honor your mother's request, but it may also decline to do so. You have no power or authority until the nomination in the will is affirmed by a court order. The will may leave you your mother's collection of antique hockey sticks, but you don't get your grubby hands on them until a judge says it's okay.
Allow me to say this again. A will has no power or authority until it is filed with the court and a judge appoints an executor.

Once a will is filed with the court it becomes a public record and any person wandering into the probate department is entitled to look at it and copy it. Therefore, once the person who wrote the will has died, there is never any reason to keep the contents of the will secret. Often I see a relative or group of relatives hoarding a will--refusing to let the other relatives know what is in it. This is crazy. If the will is going to be effective, it is going to end up as a publicly available document. There is no reason to keep the contents secret.

The first sentence.

The first sentence of a will declares the document to be a will, says who is writing it, and revokes all previous wills.  The best practice is to have old superseded wills revoked by a written document that has just as many witnesses as the will itself. The first sentence of the will takes care of that.

The listing of family.

The next part of the will generally tells whether the writer is married and lists his or her immediate family. This part of the will helps the court and the lawyers understand who is related to who and who is entitled to notice that the will is being administered. All persons who receive something and all natural heirs of a dead person are entitled to notice when a will is being administered. Just because a person is listed in the family section doesn't mean that person gets something, but if the familial tie is close the person is probably entitled to written notice of the probate.

Appointment of a personal representative.

The next section of a will often appoints a personal representative. This is the person who--if she isn't a notorious embezzler--will be appointed to be the executor of the estate. A personal representative and executor are the same thing. No matter what he or she is called, the person who has to gather up all the dead person's property, pay all the bills, and eventually distribute the money to the people named in the will, all under the eagle-eye supervision of the court staff. Naming your favorite son as your personal representative is not doing him a favor. Being personal representative is an annoying and nasty job. Nobody likes doing it. If you get the urge to spread the pain by naming a couple of your children as co-personal representatives, don't. Judges hate it, lawyers hate it, and it costs twice as much when--as always happens--the co-personal representatives don't get along and each asks for his or her own lawyer.

The last sentence in the paragraph appointing a personal representative allows the person you chose to serve without bond. The bond protects the heirs from a personal representative who decides to abscond with the money in the estate. Waiving the bond safes the estate money, unless of course you chose an executor who steals all the estate property. In that case, waiving the bond was not such a good idea.

Specific Gifts

In this part of the will we get down to giving stuff away. Giving things away is done in two stages. The first stage is specific gifts. A specific gift is to say "I give my baseball card collection to my cousin, Homer." Then you hope that the baseball card collection is still there twenty-five years later when you die. The most common specific gift is to give all your personal property to your spouse or your children. This is a specific gift of your stuff--your couch and your plates and your bust of Elvis that you got on that trip to Graceland. Lawyers and judges want the family quietly to divide this stuff so everyone is happy. Nobody except the family cares about this crap. If you choose to get in a pissing match with your relatives about it, the legal professionals will make fun of you behind your back. You need to make enough peace with your family to divide the personal property without going to court.

Some people have long lists of who they want to get what. My advice is to give the stuff away when you are alive. Once you are dead, by the time someone responsible gets around to inventorying your personal things, most of it will be gone anyway. Safes will be empty and safe deposit boxes will be filled with scrap paper. It doesn't happen all the time, but it happens a lot. If you want to be sure, give it away when you are alive.

Gifts of cash are specific gifts. If you give cousin Homer $25,000 instead of the baseball cards, that amount comes off the top. These kinds of specific gifts can get you in trouble. To see how, continue reading.

The Residue

"Residue," is a legal word for "everything else." It is the part of the will where the money is -- or at least should be. The residue is a legal container that expands or contracts to hold whatever you own at the moment of your death. If you are an average Joe or Josephine, the container holds your house, that rental you bought a while back, your stock account at Edward Jones, and what's left in your bank account. If you sell your house and use up your stocks paying for long term care, the residue of your estate will be small. If you win the lottery or get a big inheritance two days before you die, your residue will be big. When lawyers look at a will the first thing they look at is the residue clause. There are two reasons for this. One, the recipients of the residue are normally the people who get the biggest chunk of the estate. Two, the residue contains the funds that will pay the lawyer.

A typical residue clause uses fractions or percentages. "I give the residue of my estate to my three children in equal shares." Each child gets one third. Fractions (or percentages) allow the legal container to get bigger or grow smaller without changing how the whole of it will be distributed. Whether it be big or small, the children each get a third.

The residue also pays the costs of administering the will. The lawyer and the personal representative get paid from the residue. Income taxes get paid from the residue. Costs of keeping and selling real estate come from the residue. If you are fortunate enough to have to pay estate taxes, payment may have to come from the residue. These costs come out of the residue, and what remains is distributed to the people named in the will to receive it.  

Your best bet is to leave all your major assets in the residue. If you are an average person and you give everything away as specific gifts--your house to Able, your stocks to Cain, and your bank accounts to Seth--you may well have given everything away. There will be no residue and your personal representative will have a lot harder time of it. It will get done, mind you, but it will be more complicated and more expensive.

The worst cases of emptying the residue with specific gifts come from giving gifts of set dollar amounts. More than one elder has dribbled out generous cash gifts to distant relatives--ten thousand here, twenty thousand there. The elder then spent most of her money on long term care so that when she finally dies, the distant relatives take it all and the children named to receive the residue, get little or nothing.

The residue is designed to hold the bulk of the estate. Wills work best when you use the residue clause for the purpose for which it was designed..

The other stuff.

After giving away what you own, most wills go on with a lot of other stuff. You might have a trust to hold money in case some of your estate goes to a child. You might make some tax provisions. You might set the rules for who gets the money if someone named in the will dies before you do. As you move farther and farther away from the clauses that give stuff away the smaller the chance that anybody will actually ever read what it says. Some lawyers will tell you that the other stuff is really important. They might be right. Others will admit its there because it has always been in the form they use, and if it is in the form, there must be a good reason..

The signing

The will must be signed by the person making it. The signature must be witnessed by two people, and the witnesses must sign as witnesses before the person making the will dies. You cannot get around this requirement by hand writing your will or any other way. If you don't have the signatures of two witnesses, the thing is no good.

Lawyers add a document called a self-proving affidavit that is not required but makes the getting the will admitted to probate a lot easier. If you go to a lawyer, let him or her take care of that. If you are trying this on your own, don't worry about it. You have enough to not screw up without worrying about the affidavit.