[WSBAPT] Long Term CIR

Mon Sep 12 15:56:53 PDT 2022

This has been an interesting string.  I see a lot of CIR’s who come in together for EP.  Most moved here married then lost their spouse and then got together with the CIR.  Many do not want to remarry as they have retirement and/or other benefits that would be lost.  I learned to deal with them separately, and not as a couple.  Separate files, meetings and signings.  If they first balk at this arrangement I give them the conflict discussion.  I sleep well at night.

Jeff

W. Jeff Davis

BELL & DAVIS PLLC

Attorneys at Law
P.O. Box 510

720 E. Washington Street, Suite 105
Sequim WA 98382
Phone: (360) 683.1129 
Fax: (360) 683.1258 
email: jeff at bellanddavispllc.com <mailto:jeff at bellanddavispllc.com> 
 <http://www.bellanddavispllc.com/> www.bellanddavispllc.com

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Joshua McKarcher
Sent: Monday, September 12, 2022 3:24 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Long Term CIR

Excellent, yes, Tom, thank you. (And Jayne now, too.) I totally understand that. And a couple good “listserv friends” have clued me in separately that a best practice may be to first send them to separate lawyers for a property agreement to be sure they agree, with separate counsel, on what is “ours, his, and hers.” And I follow that entirely, absolutely.

I guess I (unfairly) read the original post to suggest the couple would want a “blunt solution” of “I love you” wills that just gives everything to the 30-year partner and the adult children of either of them “will be fine without any of our stuff.”

I have no CIR clients – period – but in the remarriage situations, I would frequently hear – such as this caller might have been thinking – “I want my ‘wife’ to get everything, and I don’t want my kids to be able to cause her trouble. She can have it all, and I don’t care who she gives it to after I die.”

Now, assuming they BOTH feel that way, after some clear, concrete, blunt lawyer-speak on my part, and they aren’t millionaires with estate tax issues, then I just want to be sure we have a chance to get them lifetime documents and wills that “work as well as they can if things remain as they are now.” That’s the angle I’m coming from here.

If they really did want blunt “I love you” wills and lifetime documents empowering one another – and they accepted in writing (heck, by stating in the documents) that they understand that the kids of “first to die” could be completely cut out by “second to die” – or imagine they want the entire estate ultimately to go to their favorite charity as a default anyhow, which would be memorialized in their individual wills and be pretty good evidence that neither gave a rip if their kids got a penny – then I was trying to understand why those wills and lifetime documents cannot work “to the degree they work” (because they stay together and those continue to reflect their wishes). 

If they separate, they are going to need to revoke. If they get more granular than “all of my estate to my partner/friend/whatever anyone wants to call them,” then indeed they are going to need an agreement, etc. Completely understood.

But I just would want to clarify some of that first (maybe in an email addressed to both of them before their first meeting) so that I don’t miss the chance to memorialize that much of their planning for such a couple, if it’s what they want after good lawyering on my part.

But this has been an incredibly illuminating discussion for someone who has nearly all traditionally married couples and no CIR partners.

Thanks for your time, everyone, and sorry for the emails! Hopefully this helped at least one other person clarify these issues for those of us who do not represent lots of CIR couples.

Best, Josh 

From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>  <wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com> > On Behalf Of Tom Westbrook
Sent: Monday, September 12, 2022 3:47 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> >
Subject: Re: [WSBAPT] Long Term CIR

Josh, again it might just be my age and increased loss of risk tolerance and desire to take less complicated matters. But I remember about 15 years ago when I was at a WSBA estate planning conference and a couple of the presenters put on an ethics panel about husband and wife asking you to do their estate planning. The scenario was, wife gets up to go to the bathroom and husband starts telling attorney, “don’t tell my wife, but blah, blah, blah…”. The consensus was you should decline to represent because you are already compromised and cannot waive around. You did a good job recognizing this in your response to Paul.

Obviously this is more complicated than the WSBA scenario above, but when I hear the man did not really want an attorney in the first place, my mind starts going down the rabbit hole of people misrepresenting their estate to the other CIR individual and why we have two attorneys for Pre-Nups or even Cohabitation Agreements. 

So, I’m just saying I would not want to worry about the situation and would let someone else take it on if they want to represent both. 

Sincerely,

Tom

Thomas J. Westbrook

Attorney at Law

324 West Bay Drive NW, Suite 201

Olympia, WA 98502

(360) 866-4000 phone

(360) 866--3832 fax

 <http://www.buddbaylaw.com/> www.buddbaylaw.com

COVID POLICY:

Our firm continues to follow guidance from the CDC and Governor Inslee’s office regarding social distancing and the wearing of face coverings, and we encourage the public and our clients to do the same.  Our staff is still working remotely much of the time so electronic communication by phone and email continues to be encouraged.  We appreciate your patience and understanding.

From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>  <wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com> > On Behalf Of Joshua McKarcher
Sent: Monday, September 12, 2022 2:18 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> >
Subject: Re: [WSBAPT] Long Term CIR

Hi Tom,

I truly value your perspective and want to learn here: Why does Paul’s original description scream risk that is so far beyond planning that I have always assumed planners do for unmarried couples or married couples with kids from prior marriages (even one they wish to disinherit)? I do not serve a ton of CIR couples, so it seems as though there may be something I am missing. 

Are you willing to elaborate? If they are willing to pay the fees necessary to address the risks and “cabin them in,” I am not understanding why this is so unusually risky. But I learn every day! 😊

All my best, Josh

From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>  <wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com> > On Behalf Of Tom Westbrook
Sent: Monday, September 12, 2022 3:00 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> >
Subject: Re: [WSBAPT] Long Term CIR

I realize that I am on old guy, but my advice here is “run Forrest run”……………

This has too many traps and is the amount you get paid really worth the risk?

Sincerely,

Tom

Thomas J. Westbrook

Attorney at Law

324 West Bay Drive NW, Suite 201

Olympia, WA 98502

(360) 866-4000 phone

(360) 866--3832 fax

 <http://www.buddbaylaw.com/> www.buddbaylaw.com

COVID POLICY:

Our firm continues to follow guidance from the CDC and Governor Inslee’s office regarding social distancing and the wearing of face coverings, and we encourage the public and our clients to do the same.  Our staff is still working remotely much of the time so electronic communication by phone and email continues to be encouraged.  We appreciate your patience and understanding.

From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>  <wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com> > On Behalf Of Joshua McKarcher
Sent: Monday, September 12, 2022 1:53 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> >
Subject: Re: [WSBAPT] Long Term CIR

Hmmm. I better test myself here: An unmarried couple doing joint estate planning is forming a joint representation no different than a married couple, or two business partners . . . right? No secrets, and if they fight and can’t solve it, they both lose you.

This is not a pre-nup; it’s two people planning together. You can’t keep secrets of Client 1 from Client 2 (which I bring up right after saying “Hello” in my conference room, before I care if they’re married or not), etc., but otherwise, I’m not sure I follow what conflicts there are here.

Aside from that, however, here this couple seems probably very likely to have a CIR that would indeed produce “spousal-heirship-like results” after the death of one of them. But by planning they will make that complication largely irrelevant by doing it in wills or a trust. I think?

And they will have the benefit of lifetime powers for finances and health care, which could be unpleasant surprises for them if certain family “disapprove.” (The pre-Obergefell same-sex couple problem.)

At most you may wish to ask them if they want the documents (if it gives property to the other of them) auto-revoked upon physical separation or “something” equivalent to legal separation or divorce. (I have no idea if Washington allows CIRs to be dissolved by a court filing like a legal separation or divorce. I’m just sitting here realizing I’ve never had the situation present itself.)

Good luck!

Best, Josh 

From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>  <wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com> > On Behalf Of Roger Hawkes
Sent: Monday, September 12, 2022 2:18 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> >
Subject: Re: [WSBAPT] Long Term CIR

Yes separate estate plans work; waiver of conflicts is harder because no one really knows what they ‘own’.

From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>  <wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com> > On Behalf Of Paul Neumiller
Sent: Monday, September 12, 2022 10:02 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> >
Subject: [WSBAPT] Long Term CIR

I received a call by a man who wants to do estate planning for him and his wife of thirty years.  Prior kids on both sides.  At the end of the call setting the appointment, he sort of chuckled and said “Well, I just call her my wife.  We never married.”  Uh-oh.  So, if memory serves me, I don’t think you can inherit under a CIR.  So, do I just prepare estate plans for them as if they are separate people?  Is this a conflict that I can even “disclose and waive” around?  Rumor is that the man was hesitant in even going to an attorney.  Any advice would be great.  

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