When Something is Better Than Nothing: The Case for the Holographic Will

Slide1Let’s be clear on this one point: If you don’t have a will, the state has one for you. That is, if you die without a will, your state’s law of intestacy will step in and make sure your assets go to someone. If you’re lucky, your desires will coincide with the state’s. If you’re lucky.

If you live in Wyoming, your assets will be distributed as follows, if there’s anything left after the payment of debts:

  1. If the deceased leaves a spouse and children, then 1/2 to the surviving spouse and 1/2 to children or their descendants.
  2. If the deceased leaves a spouse and no children or descendants of children, 100% to the spouse.
  3. Likewise if the deceased leaves only children or descendants of children, i.e., 100%
  4. No spouse or children? Then to father, mother, brother, and sisters or descendants.
  5. Finally, to grandparents, uncles, and aunts. (Wyo. Stat. § 2-4-101)

If you live in Utah, well, it’s quite different:

  1. The entire intestate estate goes to the surviving spouse if the deceased leaves no descendants or if all of the surviving descendants are also descendants of the surviving spouse.
  2. If some of the deceased’s surviving descendants are not also descendants of the surviving spouse, the the spouse gets the first $75,000 and 1/2 of the remainder. (Utah Code §75-2-102)
  3. What’s left, goes first to the descendants of the deceased per capita–i.e., three children? Each gets 1/3rd.
  4. If no descendants, then to the deceased’s parents, then to descendants of the parents (i.e., bothers and sisters), then to the grandparents, etc. etc. (§75-2-103)

It’s a little more complicated than what I’ve just described, but the broad outline is there. What isn’t there is the ability to disinherit or direct more money to one child than to the other. Nor is there the ability to prevent a spouse from whom you are separated but not divorced from receiving the surviving spouse’s share. Have a charitable bone in your body? Out of luck.

So what do you do if you don’t like the state’s plan for you? Make your own plan: draw up a will, using an estate planning attorney, I hope.

But if money or time is really short; if you’re in a pickle and need a will right now, this very minute, an attorney might not be an option. A holographic will might solve your problem. According to Dictionary.com, a document is holographic if it is “written wholly in the handwriting of the person whose signature it bears.” A holographic will is just that, with minor tweaks, depending on where you live.Holographic Will

If you live in Wyoming, a holographic will, to be valid, must be “written entirely in the handwriting of the testator and sign by the hand of the testator himself” (Wyo. Stat. §2-6-113).

If you live in Utah, such a will is valid if the “signature and material portions are in Testator’s handwriting” (§75-2-502(2)).

In neither case are witnesses necessary.

Thus, if you’re in a pinch, pick up pen and paper and write out your will. Tell the world how you want your property distributed should you die suddenly. Then sign it and put it where someone will find it. Tell someone about it. Then, once the emergency passes and you have more time and money, give an attorney a call and get it done right.


Employee Background Checks: Be Careful Out There

Here’s an interesting podcast about the do’s and don’ts of employee background checks under the Fair Credit Reporting Act or FCRA. Enjoy now and avoid problems later.

A Suggestion or Two on Going into Business with a Friend

You and a friend think you want to go into business together. Maybe you’ve even decided as much–or are at least pretty comfortable with the idea. You feel compatible with one another. He has talents you don’t have. You have talents he doesn’t have. Together you would make a great team. Or would you?

May I make a few suggestions about what you should do before you ink a deal that puts your time, money, and reputation on the line with this would-be partner? And can I say that what I’m about to tell you applies whether or not the potential partner is your brother or sister, your best friend or recent acquaintance, a man or a woman?

1. Act like a banker. If you were going to take out a loan with your local bank, your loan officer would want a loan application, a balance sheet and income statement. She’ll want your last two or three years of tax filings. In some cases, she’ll want a cash flow statement. She’ll pull a credit report. If she’s good, she’ll check you out four ways from Sunday, and finally–if you’re lucky–she’ll have you sign on the dotted line–on the line at the end of a loan agreement and probably on a line at the end of a collateral assignment. And she’ll have some confidence that you’ll pay the loan back because she’s checked you out so thoroughly. IMGP1526

Should you or can you be so thorough with your potential partner? Yes. And he should be with you as well. I know of someone who was about a year into a partnership when he first learned that his partner hadn’t filed his personal income taxes for five years. A couple of years later the tax man (actually woman) descended on the delinquent partner and the firm’s business. The result was ruinous for him and very damaging for the partnership. So, act like a banker and know who you’re dealing with.

2. Go trippin’. Want to know your partner even better? Go on an extended trip with him or her. Doesn’t have to be far, but it should be for at least a week and require you to spend much time together in all sorts of situations, situations that will expose his and your irritating habits. By the time you return, you’ll know how he handles money, whether he’s a penny pincher or a spendthrift. You’ll have a better idea of his character, whether you can trust him to tell the truth or count on him to lie, even about the little things. And you’ll be in a better position to decide if that partnership is such a good idea.

3. Be clear and realistic about profit sharing. Before you go too far, make sure you both are clear about how profits will be distributed. I was partners with my brothers in an insurance agency years ago, an agency where the income flowed completely from commissions. Before we joined forces, we settled on a compensation scheme that we all thought was fair and which we hoped would avoid hard feelings. Basically, we decided to split all commissions three ways. We did this for reasons I won’t go into here. What we didn’t think hard about enough was whether that split would incentivize good work habits, whether it would get us all out the door and seeing the people. I know we all assumed that we would all work equally hard. To put it mildly, that was unrealistic of us.

We were three almost completely different persons. One of us was a great life insurance salesman, an area of relatively high commission per sale. Another was more interested in selling investments, an area where commissions per sale tended to be smaller. And me, I fancied myself a salesman, but I was more of the technician, the behind-the-scenes guy who designed the cases and made sure the details were taken care of. In other words, though are commission split was good in theory–the theory that said we were all going to sell a similar amount of insurance and investments–in practice it was very unrealistic. Problem was that once we started down that road, it was hard to change our arrangement. As a consequence, our partnership was not as profitable as it might have been. So, think about compensation and profit sharing really hard–and be realistic.

5. Vacations and other benefits that can bite you in the rear. As with profit sharing, be very realistic here. Take it as a given that you and your potential partner(s) will come to the table with different expectations about work and play, health insurance and 401(k)s, etc. etc. You all need to be up front and clear about your expectations. If you’re not, trouble will ensue. Count on it.

6. Family matters matter–to some more than others. You have promised your daughter that you’d never miss a single one of her volley ball games while she is high school. Your potential partner hasn’t attended a single baseball game his son has played in. See the problem? If your approaches to family differ significantly, you may want to think twice about going into business together. That should be obvious, but to some it is not.

I could go on and maybe will in another post, but you get the idea: Those planning to go into business with one another need to have multiple intimate conversations about some very important issues. All cards must be on the table before you commit time, money, and reputation to the proposed business venture. All of them. No secrets. None.

You’ll be happier and more successful in the end if that’s the case. Trust me.


Public Service Announcement: Drones? You need a license for that?

The Federalist Society has a short video up titled, Drone regulation: Commercial v. Recreational use? that you may want to watch, especially if you’re, well, flying drones. It’s short. Just over 2 minutes. Enjoy.

Practicing Law without a License: What Could Go Wrong?

Slide1So a relative just gave me a blank copy of her parents’s will and trust, documents prepared for them by a financial planner, a guy not licensed to practice law. I have no idea what this guy knows about financial planning. I know that he knows very little about wills and trusts. Here’s a short list of problems with the documents:

1. Both documents are simple, fill-in-the-blank forms. How do I know that? The blanks. I have no idea whether the financial planner guy discussed with his clients the who, what, where, and why of filling in those blanks. For example, both the will and the trust provide spaces for appointing executors, guardians, and trustees. Was any discussion had about who should occupy those positions and why–maybe–they should not?

2. And about that guardian. The article in the will providing for the appointment of a guardian speaks only of acting on behalf of “a minor child.” The clients are both in their 80s. Obviously, the will was prepared especially for them–not!IMG_2720

3. The will gives the impression that the executor has the power to administer the clients’s estate with little or no court supervision when, in fact, state law grants that power, but only if the size of the estate does not exceed certain maximums. In Utah, that maximum is $100,000. The provision is misleading and, frankly, unnecessary, especially given that the clients’ home is worth at least $400,000, well in excess of the $100,000 maximum for informal probate in Utah or $200,000 in Wyoming. In such cases, the law already allows a simplified probate variously called informal probate, unsupervised probate, distribution by affidavit and summary procedure, and the like. My impression is that the will in question makes a big to-do about this “power” so as to appear like it’s actually accomplishing something beyond wasting paper.

4. In Utah a will is valid if it is in writing, is signed by the testator (the husband), and is witnessed by two competent persons.  In Wyoming, the requirements are virtually the same, though the witnesses must also be disinterested. This will has that, plus an affidavit that the testator is also supposed to sign and which, apparently, needs to be witnessed by three witnesses–and all these signatures are supposed to be acknowledged before a notary public. This is overkill masquerading as thoroughness and an indication that this is a one-size-fits-all-states document. Worse, the affidavit is poorly written. To wit, it says.

I sign and execute this instrument as my Will . . . (emphasis supplied)

Which instrument would that be? Arguably the affidavit. Since the affidavit is a separate document and because it refers to just any “Will” and not to the “Last Will and Testament of Joe Blow,” the word “instrument” is ambiguous and virtually worthless.

5. By the way, I see no “Last Will and Testament” for the wife. She is referred to in the title of the trust, but only by first name! The same goes for the signature line at the end of the trust.

6. The will is a so-called pour over will, a document that essentially directs that all property the testator owns at the time of his death goes into a trust, either a testamentary trust (one created by the will and which comes into existence at his death) or an existing living trust (a trust he created during his lifetime and which he’s been using while he’s alive). In this case, the trust is a living will. So far, so good. But here’s the problem: it is not apparent that anything has been done to ensure that the testator’s property has been transferred to the living trust. If that’s the case, then there will be formal probate and the living trust is of no value until the testator dies. NO VALUE.

7. And when he dies? Well, the trust has some value at that point, but just some. I’ll be brief:

a. The lifetime dispositive provisions–the directions on income and property while both grantors are alive–are minimal and leave a lot to the imagination.

b. The directions on what happens upon the death of the first-to-die are even more unclear and attempt to do a few things that I’m not sure you can do. Can a trust become irrevocable at the death of the first-to-die, but only as to certain property? I don’t think so. What should happen–and what often happens under a well-drafted trust–is that at death a separate trust is created for that property and that trust is irrevocable. The provision in the trust in this case is a mishmash of gobbledygook.

c. The provisions regarding specific distributions of personal property or financial assets is likewise poorly drafted and confusing. To boot, the provisions introduces new terminology that is not defined elsewhere in the trust. As trustee, I could guess, but could I be sure that I’m doing the grantors’ bidding when such ambiguity exists?

d. There is no discussion of marital deduction, applicable exclusion amount, portability, basis or other potentially estate and income tax saving concepts.

I could go on. Did he even talk about durable powers of attorney? About health care directives? The list of potential problems is endless, bu I’m going to stop here. The closer I read the documents, the madder I get. And that’s without contemplating the very likely fact that little or no counseling took place when the financial planner handed this garbage to his clients.

The grantors/testators paid good money for this mishmash of words, money they may never get back. As a person licensed to practice law in Utah and Wyoming, I have my differences with the whole idea of licensing, but what I’ve just described is a big argument in the other direction.

And so, dear reader, CAVEAT EMPTOR. Buyer beware. Better yet, simply don’t buy. You can do as well as this guy by yourself. But when it comes to wills and trusts, you can do a lot better by talking to a licensed attorney, particularly one who practices in the area of wills and trusts. Trust me.


Earlier Retirement?

An intriguing article on the aging judiciary on our federal courts, including our Supreme Court. I’m actually not sure where I stand on this issue. I’ve listened to many Supreme Court arguments and read my share of Supreme Court opinions over the last 40 years, and the justices impress me as pretty with it, even Justice Ginsberg, theSupreme_Court_US_2010 oldest on the court. She does seem slower in asking questions, but her questions are generally good.

That said, I do like the idea of other federal courts following the lead of the 9th Circuit and mandating regular mental and physical health exams. Though given that the 9th Circuit has historically been the most reversed of the Circuit Courts, such exams may not work as well as advertised. Or, maybe they do, and the Supreme Court should implement them.

Interesting times.

Shipping Firearms: It’s Complicated

What follows is an attempt to clarify a confusing area of firearms law–the issue of private, unlicensed persons mailing firearms. There’s a lot of misinformation out there about whether an unlicensed person–that is, a person without a Federal Firearms License or FFL–can mail or ship firearms to another unlicensed person. Before we attempt to cut through the confusion, we offer this little caveat: the discussion below does not take into account state firearms laws, which vary. What follows concerns federal law.

So, can an unlicensed person mail or ship a firearm to another unlicensed person without an FFL as an intermediary?

Short Answer

Legally, yes, if intrastate. Practically . . . it’s complicated. Fed-ex

Longer Answer

Legally, an unlicensed person in, say, Wyoming, can ship a firearm to another unlicensed resident of Wyoming, so long as the transferor “does not know or have reasonable cause to believe the transferee is prohibited from receiving or possessing firearms under federal law” (B1 and B7, pg. 197, ATF Federal Firearms Regulations Reference Guide, 2014 (Reference Guide); see also the citations to the USC and the CFR at B1 and B7). In other words, unlicensed persons or non-FFLs can legally ship firearms INTRASTATE to other non-FFLs. However, if that same unlicensed transferor wanted to ship that same firearm to someone in Utah or Florida–that is, INTERSTATE–s/he would have to ship the firearm to an FFL in Utah or Florida. The law and commentary I’ve cited above is pretty clear on this point–though apparently not to everybody.

Where things get confusing is on the practical side. Practically speaking, if we’re talking about shotguns or rifles–long guns, if you will–a Wyoming resident can mail to a Wyoming resident without an FFL. If it’s a handgun, though, that unlicensed person in Wyoming is probably going to have to ship the gun to an FFL in Wyoming as well–or have a face-to-face meet up with the buyer/transferee–because, as I said, it’s complicated.

You see, there’s the USPS and then there are common carriers like Fed-Ex who service the public at large and contract carriers like trucking companies who service a short list of clients. The Reference Guide says common or contract carriers can transport handguns; the USPS can’t.USPS

Title 18 USC §1715, the law governing the US Postal Service and firearms, is quite explicit. Except in very limited circumstances,

Pistols, revolvers, and other firearms capable of being concealed on the person are nonmailable and shall not be deposited in or carried by the mails or delivered by any officer or employee of the Postal Service.  (Emphasis added)

However, our unlicensed person can mail shotguns and rifles to another unlicensed person in the same state via the USPS, subject to certain requirements. Both the ATF (see B6, pg. 197 of the Reference Guide cited above) and the USPS give thumbs up to the process. And handguns? Well, the AFT says that “a common or contract carrier must be used to ship a handgun” whether it’s INTRASTATE to an unlicensed person or INTERSTATE to an FFL (B7, pg. 197 Reference Guide).

Unfortunately (or fortunately, depending on your point of view) at least the large common carriers are not so willing participants in the shipment of firearms–handguns or long guns. Both Fed-Ex and UPS clearly state that they will only ship if an FFL is at the receiving end, regardless of whether the shipment is INTRASTATE or INTERSTATE.UPS

Of course, Fed-Ex and UPS are not the only common carriers around. Check your local listings. If you find another, probably smaller or local carrier, they may allow an unlicensed person to ship both handguns and long guns to an unlicensed person who lives in the same state without the FFL intermediary. The law allows them to that. The question is do their internal policies? You’re going to have to ask around.

Contract carriers, trucking companies and the like? That’s a concern for another day.

One more point worth noting: Transfers between unlicensed persons that go through an FFL are subject to background checks–with few exceptions. Thus, given that

  • at least the larger common carriers require that all firearm shipments–intra and interstate–between unlicensed persons go through an FFL,
  • the USPS doesn’t ship handguns at all and requires interstate shipments go through an FFL,
  • Federal law requires that all interstate transfers between unlicensed persons go though an FFL,
  • even simple transfers–no money exchanged–between residents of different states must go through an FFL, and
  • at least 18 states and the District of Columbia require all or most intrastate transfers between unlicensed persons go through an FFL,

few firearms transfers legally escape background checks. And that includes online purchases through online outlets like Gunbroker.com that cater to private sellers. In fact, as explained in the Reference Guide:

An unlicensed person who is not prohibited from receiving or possessing firearms may purchase a rearm from an out–of–State source, provided the transfer takes place through a Federal rearms licensee in his or her State of residence. (B3, pg. 197)

Yes, some do escape and fall into the wrong hands. The law is not the only ass, after all.

To this end–the end of keeping firearms out of the hands of asses–the ATF encourages federal firearms licencees (FFLs) to work with private sellers to facilitate background checks on private buyers (see page 175-176 of the Reference Guide for more). Not a bad idea, especially if you–the private seller–are worried about bona fides of a potential buyer. Could save you and someone else a lot of heartache.

How about shipping to yourself? Well, as they say, that’s different. Federal law–remember, we’re talking only about Federal law–says that you can ship interstate to yourself for your own use to engage “in hunting or other lawful activity,” but according to question B8, pg. 198 of the Reference Guide:

The package should be addressed to the owner 1in the care of’ the out–of–State resident. Upon reaching its destination, persons other than the owner may not open the package or take possession of the firearm. (emphasis added)

Likewise, a gun owner moving from one state to another may “may transport or ship the firearm interstate” and if using a moving company, “must notify the mover that firearms are being transported” (B9, pg. 198).

And NFA firearms? Do the same rules apply? Of course, if any of the firearms you want to ship or transport are of the NFA variety, then you “must have prior approval from ATF.” The prior approval process does not apply to suppressors/silencers, by the way (CFR §478.28).

Death Certificates: For Those Who Won’t Take Your Word That Your Loved One Died

Your loved one has died, and you discover that you are the personal representative or executor of his or her will. What do you do now? Well, possibly the first thing you should do is order the death certificates; you’re going to need them–in spades:

  • To file an estate tax return–if necessary.
  • To prove to the life insurance company that the insured has died.
  • To transfer ownership of cars, trucks, boats, and any other titled vehicle.
  • To the bank.
  • To a creditor.
  • Etc. etc. etc.

Order multiple copies, maybe 10 or more. Though some will be satisfied with a copy of a death certificate, many will not, and if you don’t have an original at hand, things come to a stop. So place ordering death certificates at or near the top of your to-do list.

In Wyoming, go to the Office of Vital Statistics at the Wyoming Department of Health. The cost is $10.00 per certificate.

In Utah, go to the Office of Vital Records of the Utah Department of Health. The cost is $18.00 per certificate.

Personal Property Memorandum: Where There’s a Will, There’s an Easier Way

Slide1So you have a will and maybe a revocable trust, documents you’ve paid your attorney good money for. And in your will–and probably in your trust as well–you’ve said you want this item of personal property to go to him and that item to go to her and some other item to go to someone else. And weeks, maybe months or years later, you’ve acquired some more personal property–tangible things like rings or paintings or bikes or books or even a new car. Is it time to return to your attorney and revise your will or trust? Maybe. Maybe not.

For many of you, it’s maybe not, at least for those of you in Utah or Wyoming. You see, both of these states as well as some 40 others, allow you to “add” those new items to your will with what is called a personal property memorandum. It’s a simple document that is essentially a place to list each item you want to dispose of at death. Simply jot the name or description of the item on the memo, then right next to it, write the name of the person or organization you want to receive it when you die.

Your attorney probably discussed personal property memorandums with you when you first met about your will. To find out if she did, simply read your will. If it refers to something like “a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money,” your will allows for this simple procedure. (Actually, it will probably use very similar words since they appear in both the Utah and Wyoming Probate Codes.)

If words like that do appear in your will and if your attorney hasn’t already provided you a personal property memorandum, then it’s a simple matter of typing one up, say something like this:

     Personal Property Memorandum for the Will of John Doe

My will referred to a list of tangible personal property. This is such a list.

 Property Description                 Person to Receive the Property

_____________________               ________________________

_____________________               ________________________

_____________________               ________________________

                    etc. etc. etc.

Dated _______________________

Signed by:_____________________

                              John Doe


To be even more clear, you might include serial numbers or other identifying characteristics of each piece of personal property. You might add the address, even phone numbers of the person or persons who will receive that property upon your death. But you get the idea: the personal property memorandum is a relatively simple document.

Now, if it were me, I’d probably still consult my attorney about something like this, just to make sure I get things rights. But the relevant statutes are pretty clear: If the will refers to a written statement or list of the sort described above and if that list exists at the time of your death, is dated, signed by you, and includes “a description of the items and [persons who are to receive those items] with reasonable certainty,” that personal property memorandum will do the job intended. See for yourself at Wyoming Statutes Annotated § 2-6-124 or at Utah Code § 75-2-213.

ATF 41F — Update

Below is a slightly revised version of an e-mail I just sent my gun trust clients:

We finally know the effective date of the ATF’s new rules regarding gun trusts, responsible persons, and other related matters. That date is Wednesday, July 13, 2016.

Once the new rules become effective, gun trust grantor/trustees will be a responsible person and thus subject to the new photo/finger prints/CLEO notification (not signature) requirements. So will any co-trustees they appoint–though it appears that can be fixed by limiting the powers of those co-trusees. (I’ll keep you all posted on this.IMG_2331 I’m waiting on further guidance from the BATFE.) Mind you, the photo/finger print/notification are only required at the time of a new transaction.

Beneficiaries and successor trustees should not be considered responsible persons under the new rules.

FWIW, I think gun trusts come out well in spite of the new rules. No, you don’t need a gun trust to avoid the CLEO signature requirement, but they still allow trustees to share the trust’s NFA items. In addition, a well-drafted gun trust provides guidance to trustees and to successor trustees on how to handle firearms properly, so they can avoid the “incidental felony.” Finally, the whole process of setting up a gun trust and then administering it forces grantor trustees to consider how they are going to distribute/handle their firearms upon their death and incapacity. These last two reasons have lead me to think that gun trusts are actually a safety measure and an aid to more responsible gun use and ownership.

In short, I continue to think people who have gun trusts–my clients, at least–made a good decision to set one up.

The Wyoming State Bar does not certify any lawyer as a specialist or expert. Anyone considering a lawyer should independently investigate the lawyer’s credentials and ability, and not rely upon advertisements or self-proclaimed expertise. This website is an advertisement.