Estate planners and the consolation of philosophy
July 1, 2020
I can sum up the premise of today’s column in two words: philosophy matters.
I’m not talking about Plato and Sartre and Descartes. I’m talking about the philosophy each of us brings to our work.
Everybody has a philosophy for what they do. When you go to the doctor, she may have a philosophy of treating most infections aggressively with antibiotics, or she may have a philosophy of avoiding antibiotics unless they are absolutely necessary. If you use a tax accountant, he may tend toward aggressively trying to get you every possible deduction, or he may prefer to play it safe to make sure you don’t get into trouble later on. Different psychologists have different approaches to problems.
I remember hearing someone tell the story of having met a bassist from a well-known band, and hearing him explain his philosophy of bass-playing. I had never thought of there being a philosophy for playing a particular musical instrument, but I don’t doubt there is one.
Or more properly, there are several different possible philosophies, for almost anything you do. I’m sure there are different, competing philosophies for janitorial work, for instance, I just don’t know what they are.
When I was in law school, and through the years after that when I did trial work, judicial philosophy was a common topic of discussion. Joe Biden has said that when he was a senator, he realized that the philosophy of the judicial candidates coming before him was really important (the implication being that he was inclined to vote against them if he didn’t like their philosophy, even if they were otherwise qualified). On appellate courts, like the US Supreme Court, and even at the lower trial court level, it helps to know the philosophy of the judge. If you want to persuade that judge, you have to know where he or she is coming from.
And yes, there are definitely different philosophies for estate planners. I was listening recently to a presentation from a prominent estate planning attorney from Nevada. The presentation was sponsored by a trust company. The attorney was pushing the idea that more of the trusts we craft ought to include additional protections for the next generation. In other words, when the parents died, instead of the money going outright to the children through the trust, he felt that the assets should continue to be held in trust throughout the children’s lives, and perhaps even after that.
His argument was that if we did that, the assets would be protected through the children’s generation so that if any of the children ended up in a divorce, or made bad financial decisions, or developed substance abuse issues, or otherwise had a major liability, the money would still be there, paying out gradually, instead of being lost.
Philosophically the problem I had with this, was that he seemed to be suggesting we should do this in all cases. I have no problem doing that when the client really wants it. However, my experience has been that most clients don’t want it (unless of course they already have an heir with issues). They want the assets to go to their children, or whoever their heirs may be, quickly and simply when they are gone, with as little tax or expense as possible. In my view, this needs to be the client’s decision, not something that the attorney does automatically.
(Incidentally I am sure that the fact that the presentation was sponsored by a trust company, which obviously makes a lot more money if the assets are held in trust for several more generations, had nothing to do with it.)
Am I being too hard on this fellow? After all, he did not actually say that you should not ask the client, he just ignored that issue. But I have seen this happen, repeatedly. There was an estate planner in Anchorage for many years who did a lot of living trusts, and when he did them there would always be several pages, hidden away in the middle of these lengthy documents, which said that everything gets held in trust for the next few generations. I don’t believe he ever once explained that to his clients, and when I have pointed out these provisions to many of those clients (since he passed away, a lot of his former clients have come to me), the vast majority say they never wanted anything like that. The trusts he drafted, by the way, typically ran about 108 pages, so if you have a trust that long, you might want to have it looked at.
Does your estate planner have a philosophy of keeping things simple, trying to make sure you don’t end up with a lot of expenses, and that things go cleanly and hassle-free when you are gone? Or is your estate planner more paternalistic, substituting his or her own preferences to make sure that you, and your progeny, do not have an opportunity to do something that costs the family fortune? You could go either way, but you should know which one it is.
Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account. He thinks, therefore he am.