The Legal Seagull: Law | Litigation | Self-Help | Legal History

After three years of challenging legal education, incoming attorneys graduate from law school eager to take on the challenges of the profession and practice law. But does law school actually prepare attorneys for the rigorsof litigation practice? 

In this episode, I'm joined by my good friend and fellow attorney, Avi Ross. We reminisce about old times and recall our experiences entering the profession as new attorneys, the lessons we learned, and impart some tips (and warnings) for new attorneys entering the legal profession.

Check out Justice Navigator: The Ultimate Video Litigation Tutorial for new attorneys and non-attorneys!

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If your dog bit someone, do not panic. One of the first things you should do is educate yourself about your potential liability to the person injured. Each state has its own laws on the topic, but there are a few common patterns and defenses, which we will discuss in this article. Your best option is to hire an attorney or, if representing yourself, research the law in your state.

Please read The Legal Seagull's disclaimer. This podcast is neither legal advice nor a substitute for an attorney's services. The laws in your jurisdiction may differ in significant ways.

Humans have kept dogs as pets for over 12,000 years. For at least that long, dogs have been biting people. In the United States, there are 70-80 million dogs—that's almost 1 dog for every 4 people.

Although many bites result in minor injuries, dog bites can inflict serious injury. According to this article by the American Veterinary Medical Association, an estimated 4.5 million people are bitten by dogs each year. Of these cases, roughly 20% require medical attention. The Healthcare Cost and Utilization Project notes that "Common principal diagnoses for dog-bite related hospitalizations included skin and subcutaneous tissue infections; open wounds of extremities; open wounds of head, neck, and trunk; and fractures of upper limbs."

Dog bites can be very expensive. The average claim rose to almost $40,000 in 2015.

 

One-bite rule

 

Although rare today, throughout history many states used the "one-bite" rule. Under this doctrine, an owner would not be legally liable injuries unless he or she had knowledge of the dog's dangerous propensities, such as the dog biting someone in the past. In other words, the owner gets one "freebie" bite.

In modern times, an owner could still be held liable if he or she had knowledge (or reason to believe) that the dog was dangerous. This may be due to the dog's history, breed, or past behavior.

While the one-bite rule is used in a small minority of states, two other legal theories are more common: negligence and strict liability.

Negligence

To prove liability for a dog bite injury under a theory of negligence, the victim must usually prove that the dog's owner/handler had a legal duty to use reasonable care to prevent injuries to others in public and those lawfully on his/her property. The general rule is that an owner owes a duty of care to prevent dog bite injuries to others; however, many states exempt (or limit) liability to people trespassing on the property. Depending on the state, the definition of "trespasser" differs tremendously, and may depend on such factors as whether:

• The property was gated, fenced, closed off, etc.;
• Warning signs (e.g., "NO TRESPASSING") were posted;
• The person had a lawful basis to be on the property (e.g., mail carrier, delivery, police, etc.).
• The person was given implied consent to enter the property; and
• The age and maturity of the person injured.

Next, the victim will have to prove that the owner breached the duty by failing to use reasonable care to prevent the attack. As with everything, this depends on the state's laws, facts of the case, dog breed, size, and history of aggression and prior attacks. It may involve some or all of the following:

• Failure to properly leash the dog;
• Failure to muzzle the dog;
• Failure to control the dog; and/or
• Violation of a statute or regulation (e.g., leash law).

As with any action for personal injury, the victim will need to prove that the breach of the duty of care caused the victim's injuries.

Dog-bite statutes (AKA strict liability)

Many states have dog-bite statutes that impose strict liability for dog bites. Under this much harsher standard, an owner is liable for dog bite injuries even without proof that he or she failed to exercise reasonable care to prevent the attack. In other words, it is not typically a defense that you took all precautions to prevent the attack.

In some states with strict liability, the victim must also prove that—prior to the attack—the owner knew the dog had a tendency to be dangerous (known as having "dangerous propensities"). This may include:

• Biting;
• Snapping;
• Snarling;
• Growling; and
• Fighting (humans or animals).

Generally, it is not enough to show mere barking, chasing cars, or even jumping on people.

Common Defenses in Dog Bite Cases

The defenses available to you will depend on your state's laws. That being said, here are a few common defenses to dog bite lawsuits (note that they may overlap):

Statute of limitations

Statutes of limitation limit the time to file a lawsuit for a particular event or set of facts. Statutes of limitation cut off a party's right to sue another party after a certain time period. If the victim sued you after the expiration of the statute of limitations, you can move to get the case dismissed.

If you are sued, check to see what the statute of limitations is for dog bite lawsuits in your state. If you have any doubts, contact an attorney and set up a consultation.

Contributory/comparative negligence

Under this defense, the victim was negligent and caused (or contributed to) the victim's own injuries. Here are some examples:

• Ignoring a warning sign (e.g., "VICIOUS DOG" or "BEWARE OF DOG");
• Approaching the dog against your warnings; and
• Hurting the dog (e.g., stepped on its tail, tripped over it, or hit it with a door);

Assumption of risk

The victim voluntarily and knowingly assumed the risk of a dog bite by engaging in certain conduct. This may include:

• Working in a profession where dog bites are likely and foreseeable (e.g., dog groomers, kennel workers, animal control, veterinarians);
• Approaching a dog known to be dangerous (e.g., growling, foaming at the mouth, history of aggression).

Provocation

The "victim" provoked the dog into attacking. This may include:

• Kicking, hitting, or punching;
• Chasing;
• Taunting, teasing, or yelling; and
• Straddling or riding.

Under these circumstances, you may have a defense to assert, even in states with strict liability.

Contact your homeowner's insurance (or renter's insurance) agent right away

 

If you have homeowner's (or renter's) insurance, contact your insurance company right away to report the claim. You may also need to submit a written declaration or affidavit. Many policies (but not all!) include liability coverage for injuries caused by your dog—even if the incident did not occur on your property. Most policies require "prompt" notice of a potential claim, so do your best to notify your insurance company right away.

Once you have filed the claim, the insurance company will determine whether you have valid coverage. If the victim files a lawsuit or threatens you with legal action, your insurance company will conduct an investigation, including interviewing the victim, witnesses, and reviewing any photographs and documents presented. It will then determine whether to settle the claim or defend you in a lawsuit.

If you did not disclose your dog on your application, or have a breed that is excluded under your policy, the insurance company may deny coverage. In that case, you will need to consider hiring an attorney or representing yourself.

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Few agencies are more shrouded in mystery than the United States Secret Service. It even has the word "secret" right in its name!

In this episode, we trace the fascinating history of this federal agency–from its origins as an investigative agency charged with combating the prevalence of counterfeit currency to its present day responsibilities of protecting the President, Vice President, and several other categories of protected people.

Did we mention that President Lincoln was assassinated on the very same day he signed legislation creating the Secret Service?

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According to the Dave Nee Foundation, which promotes awareness of depression among lawyers, "lawyers are 3.6 times more likely to suffer from depression than non-lawyers." In a February 2016 study published in the Journal of Addiction Medicine, it was noted that: "Levels of depression, anxiety, and stress among attorneys reported here are significant, with 28%, 19%, and 23% experiencing mild or higher levels of depression, anxiety, and stress, respectively."    Why are lawyers so unhappy? Why aren't carpenters, plumbers, teachers, priests, or magicians the most unhappy profession? Is there something inherently different about the practice of law? Or is it the profession that attracts people prone to depression?   To tackle these difficult questions, we interviewed Daniel Lukasik, an attorney who raises awareness of depression and helps lawyers obtain treatment.

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With the recent appointment of Ajit Pai to chair the Federal Communications Commission (FCC), the current regulatory regime of net neutrality is expected to be eliminated or significantly curtailed. The elimination of net neutrality may impact which websites and services you can access; the speed at which you can access them; and, ultimately, what it will COST you to access them.

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Dred Scott v. Sandford (1857) is widely considered to be the worst decision ever issued by the United States Supreme Court.

Dred Scott, a slave, sued for his freedom on grounds that he had resided in the free state of Illinois and the territory of Wisconsin, thereby making him a free man.

In a 7-2 decision authored by Chief Justice Roger B. Taney, the Supreme Court held that, as a descendant of slaves imported to the United States from Africa, Scott was not (and had never been) a United States citizen. Accordingly, he was considered property, and had no ground to bring a claim in federal court.

The decision further struck down the Missouri Compromise Act of 1820, which had previously outlawed slavery in all future states north of the southern border of Missouri.

At the stroke of a pen, the Supreme Court inflamed the already-explosive debate over slavery and precipitated the Civil War.

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In one form or another, you're exposed to waivers of liability almost every day. Ever wonder what exactly you're giving up with these contracts? Spoiler alert: A LOT!

Even The Legal Seagull has a waiver of liability in its disclaimer. Check it out!

In this episode, we discuss:

• The prevalence of waivers and releases;
• The difference between waivers and releases;
• Where you're most likely to encounter these documents;
• What to look out for when reviewing them;
• How all this impacts you; and
• How courts treat waivers and releases of liability.

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A prenuptial agreement ("prenup") is a contract between two people, signed before marriage, detailing how assets and liabilities will be divided in the event of divorce or death. When this type of contract is signed during marriage, it is referred to as a postnuptial agreement.

When it comes to uncomfortable conversations to initiate with your spouse-to-be, few discussions are more dreaded than that of whether to get a prenup. Will he think I'm greedy and obsessed with money? Will she think I don't trust her? Will he doubt that I love him?

Please read The Legal Seagull's disclaimer. This podcast is neither legal advice nor a substitute for an attorney's services. The laws in your jurisdiction may differ in significant ways.

 

Why people shy away from prenups.        

 

Some people worry that getting a prenup kills the romance by planning for a divorce before the wedding, at a time when the couple is madly in love and planning a future and family together. Others believe that a prenup is a self-fulfilling prophecy: Plan for a divorce and that is what you will get.

 

 

For others, prenups do not necessarily present a moral or philosophical dilemma. They simply do not believe they will get divorced. This is not all that surprising. People tend to be optimistic—and love and passion sometimes cloud rational decision making. While most people know the frightening statistics—between 40-50% of marriages in the United States end in divorce—no one expects his or her marriage to fail.

 

Many people never consider a prenup because they believe (mistakenly) that only the rich and famous need them. We're both broke, why should we waste money we don't have on something we won't need? This is another common misconception. As discussed below, prenups can even be drafted to protect someone from his or her spouse's debts, and to protect the spouse who is less financially stable.

 

Marriage is like a business. You need to plan how to pay bills; feed yourselves; save money; manage debt; afford a home; and, eventually, start a family (not necessarily in that order). If you do not bring up the "M-word" (money) prior to marriage, it will come up after. I can personally guarantee that.

 

Even if you ultimately decide not to get a prenup, strongly consider meeting with an attorney to discuss whether a prenup is in your best interests. Many attorneys offer free consultations for that purpose.

 

Community property vs. equitable distribution states.

 

There are two different systems for distribution of assets upon divorce—community property and equitable distribution. As of 2017, community property is the law in Arizona, California, Idaho, Nevada, New Mexico, Texas, Louisiana, Wisconsin, Washington, and Alaska (optional). This amounts to about 25% of the population of the United States. In community property states, income, assets, and debts obtained during marriage are split equally (50-50) between the spouses.

 

In the remaining states (the majority) of the United States, the prevailing law is equitable distribution. Under this system, the judge has broad authority to distribute assets and liabilities in an equitable (fair) manner. Depending on the state, the judge may consider, among other things:

 

• The length of the marriage;
• Each party's health, education, training, and age; and
• Whether a party is at "fault" for the marriage ending (e.g., adultery, abuse, etc.)

 

 

SCENARIOS THAT APPLY TO ALMOST EVERYONE

 

 

1. Protect money and property acquired prior to marriage.

 

If you have assets you acquired prior to marriage, you probably want to protect them. This may include bank accounts, stocks, bonds, real estate, vehicles, personal items, jewelry, or a trust fund. This is especially important in community property states.

 

Here is an example: Peter and Lois are about to get married. They live in a community property state. Peter has $25,000 he inherited from his mother and another $30,000 he saved while working at the local ice cream parlor.

 

In theory, the assets acquired prior to marriage are Peter's separate property and Lois would not be entitled to them upon divorce. The problem arises when assets get commingled, making it difficult to trace the source of the original assets. For example, Peter and Lois may:

 

• Fund joint bank accounts with assets they are bringing into the marriage;
• Mix Peter's inheritance and savings with additional income earned during marriage (wages, bonuses, etc.);
• Use the funds for a down payment on a home;
• Invest money in stocks, bonds, and real estate; and
• Use funds to pay off bills and mortgage payments

 

As the months and years go by, it becomes more and more difficult to determine what portion of the assets originated from Peter's premarital assets. A well-drafted prenup may protect Peter from a contentious and expensive divorce and from losing a significant portion of his premarital assets.

 

1. Protect income and assets obtained during

 

Depending on the state, a prenup can protect income you earn during marriage and even limit the amount of alimony your ex-spouse can collect.

 

Here is a simple (perhaps over-simplified) example to illustrate this point:

 

Tarzan and Jane live in a community property state. Prior to marriage, Tarzan had $10,000 in savings, which he maintained in a separate account throughout the marriage. During their 20-year marriage, Tarzan refused to work, spending every day swinging on trees, eating bananas, and pounding his chest ferociously. With Jane working three jobs, the couple managed to save $200,000. When Tarzan filed for divorce, he kept his $10,000 premarital savings and half ($100,000) of the couple's joint savings.

 

I am NOT suggesting that Tarzan should not be entitled to anything because he did not work. Many families consist of one wage-earning spouse, with the other primarily responsible for raising children and managing the household. In some families, a spouse cannot work due to disability, illness, or incapacity. In this particular scenario, however, Tarzan does not appear to be contributing much of anything. A prenup could have eliminated Tarzan's share of Jane's wages, or at least limited it (e.g., 15% instead of 50%).

 

1. Ensure your wishes are carried out if your will is invalidated.

 

You might be reading this article and thinking, "When I die, my will already spells out who gets what." Keep in mind that a will can be contested. If the will is successfully contested and invalidated by the court, your assets may be distributed in accordance with a prior will or your state's intestate succession law. Here is an example:

 

Martha and George are a childless married couple living in the State of Atlantis. Before they married, Martha had $50,000 that she won in the Atlantis lottery. Martha's will states that upon death, the $50,000 should go to her sister Abigail. Martha is killed in a duel. George challenges the will on grounds that it did not comply with Atlantis law because it was not signed and there was only one witness instead of two. The judge sides with George and invalidates the will. With no valid will, Atlantis' intestate succession law applies. George inherits everything, including the $50,000.

 

Wills can be contested on numerous grounds, including but not limited to:

• Failure to comply with formalities;
• Undue influence;
• Lack of capacity; and
• Fraud

 

If Martha and George had negotiated a prenup listing the $50,000 lottery prize as Martha's separate property, George would not be entitled to that $50,000 upon her death. The moral of the story: Before participating in a duel, make sure your affairs are in order. Just kidding, do not participate in a duel! The real moral of the story: A prenup can serve as a "backup" if your will is found to be invalid.

 

 

1. Reduce or eliminate uncertainty, extensive litigation, fighting, and bitterness in a divorce proceeding.

 

When negotiating a prenup, soon-to-be spouses anticipate potential points of disagreement and determine in advance what will happen to their assets (and liabilities) if they divorce.

 

When you are in love and planning a future together, discussing the division of your assets upon divorce can be a very uncomfortable conversation. But if you think that is hard, imagine that same conversation during a bitter divorce proceeding where each of you is represented by an aggressive attorney. Did I mention that each attorney bills at a rate of hundreds of dollars per hour?

 

In law and love, nothing is certain; however, a well-drafted prenup can eliminate or reduce unpredictability, conflict, and financial loss. The few hundred—or thousand—dollars you save by not getting a prenup could cost you tens—or even hundreds of thousands—in attorney's fees alone.

 

 

COMMON SCENARIOS WHERE A PRENUP MAY MAKES SENSE

 

 

1. You or your spouse have children from a prior relationship.

 

Children from a prior relationship can introduce uncertainty and tension into your upcoming marriage. If I get divorced, will my spouse take money that I saved for my kids? If your soon-to-be spouse has children, he or she may have the same concerns.

 

Whether you discuss it with them or not, your children may also be anxious. Will dad's new wife get all of my future inheritance through divorce or death? What will happen to Grandpa's priceless watch?

 

A properly-drafted prenup can substantially reduce uncertainty, protect your children's financial future, and allow everyone to breathe a sigh of relief.

 

 

1. You own a business.

 

A prenup can help protect the business you worked hard to create and grow. Even if you built a successful business prior to marriage, you could still face a claim by your ex-spouse that he or she is entitled to partial-ownership or some interest in the business. This is especially true in community property states if joint efforts were invested to support and build the business.

 

To prevent or reduce the likelihood of this scenario, a prenup can specify that some (or all) of the business is your separate property—even if your spouse contributes money and labor into the business.

 

If you have business partners, they will probably be thankful that you did some planning. Imagine this scenario:

 

Mario and Luigi are general partners in a plumbing business. Mario owns 60%; Luigi owns 40%. Mario's wife, Peach, files for divorce, and ends up owning half of Mario's share. Now, Mario owns 30%; Peach 30%; Luigi 40%.

 

Neither Mario nor Luigi can stand Peach, who does not know a darn thing about business or plumbing, and who left Mario for Toad, a young Salsa dancer. Because the three do not always agree on company decisions, they are often deadlocked, with no one holding a majority. Every month, the brothers must write Peach a check for her share of the business's income. Mario and Luigi rarely enjoy each other's company anymore. Mario cries himself to sleep most nights and wishes he had negotiated a prenup with Peach.

 

1. Your future spouse has a lot of debt.

 

Generally, a person is not liable for debts incurred by his or her spouse prior to marriage (again, read the disclaimer!). Nevertheless, if you and your spouse end up commingling your assets (e.g., joint bank accounts, etc.) it may be difficult to determine who owns (or owes) what. Moreover, if you decide to refinance or consolidate your debt, things get even murkier. The last thing you want is to be liable for your ex-spouse's gambling debts, alimony from a previous marriage, back taxes, and more.

 

Consider including a provision in the prenup that all debt acquired prior to marriage will remain separate and that each spouse will not be responsible for debts acquired by the other during the marriage.

 

 

 

 

 

 

 

1. You or your future spouse plans to obtain (or is working towards) an educational/professional degree or certificate.

 

Each state has its own laws regarding the division (or non-divisibility) of degrees and licenses upon divorce. Degrees and licenses are inherently expensive—often costing over $100,000. They are also extremely valuable because they significantly improve earning potential and employment prospects.

 

Oftentimes, a person will sacrifice his or her career to financially support a spouse in obtaining a degree or license. This leaves the supporting spouse vulnerable in the event of a divorce. On the other hand, the spouse who obtained the degree will continue benefiting from it for the rest of his or her life.

 

Here's another hypothetical: During her marriage to Mark, Cleopatra earned her nursing degree. Most of her tuition was paid for by her parents and some money she inherited from her grandparents. They decide to get divorced. Mark claims that based on their state's laws, he is entitled to a portion of the nursing degree's value (in addition to Cleopatra's future income) because the degree was obtained during marriage.

 

A decent attorney could have anticipated this problem and drafted a prenup specifying how the degree should be valued and divided upon divorce.

 

1. You are planning to sacrifice your career to raise a family and/or support your spouse.

 

It is not uncommon for a person to sacrifice his or her career to raise children or benefit a spouse's career. This may include relocating, quitting a job, or giving up a career.

 

Take this example: Josephine and Napoleon fall in love and decide to get married.  Josephine quits her job as an advertising specialist in Los Angeles (with a salary of $80,000 per year) to move to Cleveland and start a family with Napoleon. Before she quit, Josephine was on track to be promoted to junior vice president and get regular increases in her salary. Napoleon just started his career as an architect, also making $80,000 per year. With Napoleon as the breadwinner, Josephine focuses on raising their two children, Genghis and Khan.

 

Ten years pass, and the couple decides to divorce. Now, Napoleon earns $250,000 per year and has a promising career. Josephine, on the other hand, sacrificed her career years ago and must now start from scratch, probably making significantly less money than Napoleon—and less than she was making before.

 

Without a prenup in effect, Josephine is at a significant disadvantage and may have a hard time supporting herself.

 

 

 Conclusion

 

If you are planning to get married, hopefully this podcast has not scared you away from the altar. Prenups are not for everyone; however, a sensible prenup can protect your financial future, reduce or eliminate uncertainty, and make divorce less contentious and expensive.

 

Even if you think divorce is unlikely, do yourself a favor and consult with a family law attorney to determine whether a prenup is right for you.

 

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If you died tomorrow without a will, who would inherit your assets? Who would be your children's guardian? What would happen to your remains and who would carry out that unenviable task? How would your debt and final expenses be paid?

Do you really need a will, even if you're broke? What if you just want everything to go to your spouse?

Our guest in this episode is trusts and estates attorney Adam Becker. Adam answers all these questions—and more—to help you plan for the inevitable.

What is a will?

NL: Let's start with the basics. What is a will?

AB: A will is a legal document that lets you decide who gets what, and at what time after you've passed away.

NL: What other terms are there for a will?

AB: Sometimes you'll hear people refer to a living will. That is a different document that has more to do with healthcare decisions. You will also hear people refer to a trust, and there is a lot of confusion sometimes between what is a will, and what is a trust. The truth is that they're related documents that usually work together.

NL: You mentioned living wills. What is it called when you simply have a will that deals with your assets, and what will happen to them when you die?

AB: We'd probably call that a testamentary will. That just means when you die there's this piece of paper that tells people: "Here's what I want done when I die. Who gets my assets, who is in charge of giving away those assets, who is going to look out for my children," that's a guardian named in a will. That's what you typically would think of in a will that you might see in a movie or in a TV show.

Who needs a will?

. . .

AB: Anybody who has assets needs a will, and certainly anyone who has children needs a will.

NL: A lot of people . . . have said to me, "well I'm broke, I don't have anything to give." Or they'll say, "I don't care, I want my wife to get everything." Would you agree that if you're broke—or if you're married—you don't need a will?

AB: No. I think nowadays there are online services that can do a good job of providing just a will very cheaply. Surprisingly, you can also write out your own will. I'll speak for the State of California where I practice. If you take a piece of paper, and in your own handwriting write it, date it, and sign it, that is a legal document that would express who gets what when you pass away. Now, there's drawbacks to doing things by yourself, and writing things out can often have mistakes, but I would say it's better than nothing in some cases.

Bank account beneficiaries

NL: Specifically, for people who just want their spouse to inherit everything they have, do you think it's important for those people to draft wills?

AB: Well, there are ways around a will. For example, a bank account. I can name my spouse on my bank account, or as the beneficiary of the bank account. Then, when I die, she just shows up with my death certificate and claims the assets. So, we didn't need a will in order to transfer that asset. I could put her on the deed to my house. I can get around having a will if I want to give everything to my spouse. But if I have other people that I want to make distributions to, or if I forget one of those assets, I forget to put her on one of those assets, then I will wish that I had a will, because that can transfer to her after I die.

NL: What happens if there's a conflict between the person you listed as your beneficiary, and your bank account, and what's written in your will? I can't remember who I listed for my bank accounts. I hope it's you Olivia, but I probably need to go back and check.

OL: You're in big trouble if it's not!

AB: That's a more complicated question, but I tell people to look out for this all the time. We draft a will, then the next step is to make sure that all our beneficiary designations line up with what we've said in the will. Because if there is a difference [and] that company that has the beneficiary designation on file, they are going to get the death certificate when you die, and they are going to say, "Sorry Neer, it says here that your mother is supposed to get this asset. Either go to court and tell us otherwise, or we're paying this to your mother."

Preparing a will

. . .

AB: Like I mentioned earlier, there are online services that would help you to prepare a will. Usually they have a series of questions that you answer, and it fills out a will for you, so that would be one way.  There are good wills that you can get online. [In California and some other states], you can also write a will yourself in your own handwriting, or you can go to an attorney, and have an attorney assist you through the process of preparing a will, or an estate plan.

NL: When should you consider getting an attorney, versus . . . going to one of these online services, or getting a "fill-in-the-blank" printed form?

AB: If you have children, I would certainly want to run my will by an attorney to make sure it was done correctly; to make sure that they are going to be taken care of by the people that you use; and, that the assets are going to get to them in the way that you want. If you have substantial assets, and by that I think I would say anything over $150,000, I'd want an attorney to review it. But I know a lot of attorneys who will just prepare a will for a very reasonable price, not much different from what you could pay for it online.

The importance of wills for blended families

NL: Let's talk a bit about blended families where you have children that are the children of both people in the relationship, and then maybe they have children from prior marriages, or prior relationships . . . I want to bring up a hypothetical to illustrate, and flesh out these issues . . . Bob doesn't have a will. Bob is married to Heather. They have two children together, and Bob has two children from a prior marriage. Bob would like everything to go to his wife, and he figures that's what will happen. If Bob gets run over and killed by an ice cream truck tomorrow, what happens to his assets without a will?

AB: So, Bob is married, but he's got two children from a different marriage, and two children with Heather. If he dies tomorrow and he's living in California, which is where I practice, everything would not go to his wife, Heather. Some people would be surprised to learn that. No will is there, so he can't say who gets what. California law says that one-third of his assets would go to his wife, and two-thirds would go to his other children.

NL: That's clearly not what he intended for here . . . Assuming he had drafted a will, how could this have prevented the problem?

AB: With a will, he could choose who gets what in any amount that he wants. Now, there's some complications with community property and separate property. But just keeping things very simple, in a will, Bob gets to say "This is who I want to have my assets—and here's the way in which I want them to get them."

Concerns involving minor children and young adults

NL: Does the age of the children make a difference as far as planning whether or not you should get a will, and what the will should provide?

AB: It certainly does. If you have minor children, they can't receive the assets until they're 18 years old. Someone can pay for them, and provide for their needs, but they can't get the assets until they're 18 . . . I have a friend I was speaking with, and he told me this story of a client of his who came to him and said, "My son is the beneficiary of a wrongful death lawsuit. His mother had passed away when he was very young because she had been hit by a driver, a city employee who was drunk." They settled the lawsuit, and now he was going to inherit from the city a couple million dollars. He said, "My son is 17 and a half, and I don't want him getting all this money, what can we do?" Well, sadly, there's nothing you can do. The child is going to get that money, because the contract is between the city and the child.

But my friend said, "I met with [the father and child] in the hopes of convincing the child to put some of these assets into a trust, or some other vehicle where the money wouldn't be spent. Because who wants their 18-year-old to receive a couple million dollars? So he said, "I met with him, and we convinced him the right thing to do was to put this money up in a trust until he's at least age 25. But his education would be paid for, his health would be paid for, if he needed money for groceries and things like that, that would be available. But he wouldn't touch the money until he's at least 25." At the end of their meeting [the son] said, "Okay dad, that sounds like a good idea, except I want to keep enough money to buy a condo in Vegas and a Ferrari." That illustrates to our clients why receiving a lot of money at a young age is usually not a good idea for children.

NL: In effect, what you're saying is that sometimes you want to protect your kids from themselves?

AB: Correct. I always talk about two types of creditors with clients. One, up to a certain age,  you want to protect people from themselves—they are their own worst creditor. Then, generally after a certain point, we're worried about other outside creditors, and there's ways we can help protect against those. But most people agree that until some age, 25, 30, 35, children are going to need guidance in how their money is spent, and you can set that up with the use of estate planning documents.

. . .

Making sure your wishes are carried out

NL: Let's say that: Bob's son, Bobby Jr. . . from a prior relationship . . . [and Heather] have an on-and-off-again relationship—a very tense relationship—because Bobby Jr. and Heather just don't get along. Bob really wants to make sure that Bobby Jr. is taken care of. What can he do as far as planning, crafting a will that will protect Bobby Jr., and make sure that he gets some money as well?

AB: This is a common question that I hear from persons in a blended marriage, where they have children from a prior relationship. They say, "Adam, how do I take care of my children from that first relationship. I know my spouse . . . [is] not going to take care of them after I go . . . what do I do to provide for them?" There's a couple things you can do. First, you could give assets directly to those children when you die. So, in your will, you would say, "Upon my death, Bobby Jr. gets X." But unless you have a lot of money, oftentimes those assets are going to be needed for your spouse.

You could give the assets to your spouse, and just hope that she does the right thing in this scenario and gives them to Bobby Jr., but in my experience, that doesn't usually happen. Other "good reasons" come up for why Bobby Jr. doesn't need that money anymore. I've found that a simple solution can sometimes be a little bit of life insurance. You buy some life insurance, name Bobby Jr. as the beneficiary upon your death. If you want to be a little more sophisticated you'd put that into an insurance trust. Then, when you die, that money is there for Bobby Jr., and he gets it, he's paid out. The second spouse can go her way, and provide for your joint children as she sees best.

Wills and trusts: What is the difference?

. . .

AB: A will is just a piece of paper until you die. One of the big differences between a will and a trust is that a will is only effective upon your death. A trust, on the other hand, can be created while you're alive. It's created by transferring assets (like a bank account or the title to your home) to the name of the trust. Now it's funded, it's called a living trust because it works while you're alive. A good reason why you might want a will while you're alive is if you become incapacitated. Then, somebody you've named in the trust, called a trustee, can step in and manage your assets for you in the event you're incapacitated, you're in a coma. Who can manage the family business, who could sell your home, who could cash out bank accounts, who could provide for you and your family if you're not able to do that, that's a trustee. If you just have a will, we have to wait until you die until we can step in and manage those assets.

Who makes your medical and financial decisions when you are incapacitated?

NL: If instead of dying, Bob ends up in a coma or a vegetative state, what happens? Who makes the decisions for him if he didn't have a will?

AB: . . . If he had a power of attorney that would let somebody act on his behalf in financial matters. If he had a healthcare directive in California they could make decisions for his healthcare. But if he doesn't have any of those things then somebody is going to have to go to court to get what's called a conservatorship. It's expensive, and there's fees. You've got to pay the attorney, pay the court, you've got to pay an accountant maybe to prepare an accounting of his assets. A conservatorship would then allow somebody to act on Bob's behalf, to now make financial decisions, and decisions about his person, about his body, what happens, what kind of healthcare is he going to receive . . . We wish he would have had a power of attorney document, or a healthcare directive, or even a trust to manage his assets.

NL: It seems that whatever money he saved by not drafting a will is now going to cost his family a lot to hire an attorney, and go through this conservatorship procedure—which is not cheap—so it does seem that even though a will is an investment, you're saving money later on, or saving money for your family in the event that something goes wrong.

AB: Definitely. You're also saving frustration, from having to wait on the conservatorship to be approved. You're saving time, and making it much easier for your family to provide for you if you do become vegetative. You're making it much easier for your family to provide for you if you are in a coma.

NL: How long does it take for you to establish a conservatorship, and what happens to Bob in the meantime? I mean, he's chilling in the hospital bed.

AB: If everyone gets along, the procedure shouldn't take too long. But in our scenario, where we had Heather and Bobby Jr., who were at odds with one another, if Bobby Jr. is going to contest this conservatorship, to say that he's in a better position to care for his father, then [Heather], who is now looking around or something like that, it could take quite a while to resolve this conservatorship matter. So again, if Bob had set these things up ahead of time, there wouldn't be that issue facing the family.

Planning for end-of-life care and decision-making

NL: Do you want to be kept alive artificially? Do you want your heart to be restarted? Can you talk a bit about what important end-of-life decisions one might want to take into account, and how a will can provide for that?

AB: There's a lot of important end of life decisions. But I think there's generally three big ones that people are concerned with the most.

First, what do you want to have happen with your remains? Are you going to be cremated? Are you going to be buried? Do you have specific instructions? I had a friend tell me one time he wanted to be cremated, but then I was to take his ashes and scatter them in center field of Dodger Stadium, to which I laughed. I definitely don't think that's possible, but those are the directions he wanted.

[Second] is organ donation. You can say in advance, especially if you're younger and healthy, "If I die, I want my organs to be donated." Now, your family doesn't have to make that decision. Is that something they object to, they would want to do on your behalf? You can just tell them ahead of time.

Third, the end-of-life choice. Do you want to be kept alive as long as possible? Do you want to have your life taken off of life support as soon as they can? Or, like you mentioned, do you have other specific measures? "I want to receive water—but not food." "I want painkillers—but not something else" All of that you can spell out in a healthcare directive so your family doesn't have to try and figure it out.

What do you want done with your remains (e.g., burial, cremation, organ donation, etc.)

NL: When it comes to the remains that's also something to consider. Because I, for example, don't care. If there's anything that can help someone—whether it's my eyeballs, corneas, ears, heart—they are welcome to take it. But I totally understand—and I respect—that for a lot of people, there's parts of their body that are very personal, and that they wouldn't want to give up.

There are obviously the eyes and facial features. They do facial transplants now, and that could be very weird for your family, or uncomfortable knowing that your face is on another person. Likewise, for people who have experienced horrific accidents, they have genital transplantations, which I think most people would find kind of weird and would want to make a specification either way in their will. So, I think that's definitely something you want to include as well, as far as what should be donated, and what should they not take from you.

AB: In a living will, or a healthcare directive, you can be as specific, or as broad as you want. You can just say simply "I agree to all organ donation," and now your family gets to make those decisions. Or, you can say, "I agree to organ donation, but I want to keep my eyes, and a few other parts too." So, ahead of time, you can tell your family what you'd like done. We were saying during a break, I think it was Olivia, one of the important things is not to have any surprises. You don't want to surprise your family with any strange requests once you've passed away.

NL: Too late for that, my will is drafted. Actually, Adam, I wanted to ask you . . . You did the will for Olivia and I, and I recall there being a conversation about what parts of the body to donate. Olivia specifically…

OL: Your heart belongs to me!

NL: Okay. Well, what I was thinking was that I recall [Olivia] saying that [she] didn't want [her] brain transplanted into another person. Adam, is that a real thing? Can they do brain transplants yet? If you don't want to get in the middle of this lover's quarrel, I completely understand.

AB: Well, Neer, I don't know if Olivia is going to want your brain, but whether or not they can do a brain transplant, you'd have to speak with a neurologist. To answer it from the legal perspective, you can put whatever restrictions you want into your healthcare directive.

NL: . . . Let's get back to Bob quickly. Let's kill Bob again . . . he's dead and now there's no will, so there's no provision as to what should be done with his remains. Bob wants to be cremated—that's what was done with his parents' remains—that's just what he wants to do. Heather, on the other hand, has strong beliefs that when someone dies they should be buried. Bobby Jr. watched a really cool YouTube video about how some people are being frozen so that in the future—if it's possible to resurrect them—they are kept intact. Now we have a dispute: There's Bob's wish, which is not written anywhere in a will. There's Heather's belief that people should be buried. Then, there's Bobby Jr., who wants to deep-freeze dad. What happens under the law in this scenario?

AB: Well Neer, I've had several people tell me that they want to be frozen—like Walt Disney or Ted Williams—when they die. I've always said, "That's fine, but how are you going to pay for it?? I don't think freezing is free yet, so someone has to pay for that. So, I'd probably say to Bobby Jr., "Unless there's enough money in this estate to pay for a frozen father, your idea is no good." Ultimately the answer, as you know with all legal things, is: If you can't decide, then you end up in court, and the judge will tell you what to do. So, in this case, they're just going to have to work it out. The family will have to compromise. This is another good reason of why having a will, or a healthcare directive would avoid this dispute.

NL: What happens if they just can't compromise? Heather and Bobby Jr. each have their own opinions, they try settling, mediating, nothing is happening, they just can't agree.

AB: Then they're going to end up in court explaining to the judge why their reason for Bob being buried or cremated is the most important, and the judge will make a decision.

The right time to get a will

NL: In your law practice, when do most people come to see you for a will?

AB: I've joked that if we were to ever advertise, we should do it in a travel magazine. Most people come to see me right before they're going to take a long trip. I guess they're thinking [that] if the plane goes down, they want to be prepared. The second most common time people come to see me is after somebody they know has died, and now it's on their mind.

I guess the third most common would be children who are just concerned about the ailing health of their parents; they want to make sure the affairs are in order before anything happens to mom and dad. But really, if we did it right, everyone should do this early. It is much easier to get things in place earlier in your life than to wait at the end when you have more complicated family arrangements, and a more complicated maze of assets.

When you have a child, or are about to have a child is a great time to get your affairs in order. You need to choose a guardian. My wife and I took three years to decide who was going to be the guardian. Now, I don't care so much that I have children, but before the first one came, we just could not decide who would be the guardian of our children, and made it much more complicated than we needed to.

Before you buy a home is a good time to do your estate planning. Once you own a home, the post-death administration is more complicated because you owned real estate than before you bought the house.

Before you inherit assets is a good time to set up an estate plan that is going to provide for your own family. I've also found recently with children going to college away—out of state or in a foreign country—is a good time to have that child set up a very simple will, or to at least give you power of attorney for their own healthcare, and their own financial decisions.

When is it too late to get a will?

NL: . . . Obviously, when you're dead it's too late to get a will, and if you're incapacitate completely, or if you're in a coma. But is there anything in between where it's just too late, you just have to wait it out?

AB: One of the hardest areas for us as estate and trust attorneys is determining when somebody has lost the capacity to sign a will or a trust. It's a very gray area, it's heavily litigated. To avoid any of that litigation, you want to have documents signed well in advance—so there's no questions as to whether or not your parents—or you—had capacity.

NL: Can you give an example of when someone has questionable capacity, something that could be challenged in a court of law?

AB: Someone who is not able to make decisions for themselves. They live with the assistance of others, they have a documented diagnosis of dementia or Alzheimer's. Now, that doesn't mean they can't sign a legal document, because they can have moments of clarity. It just means you're in for a probable lawsuit to try and prove that they did have capacity.

–END OF INTERVIEW—

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