[WSBAPT] Long Term CIR
Andrekita Silva
ak at seattle-silvalaw.com
Mon Sep 12 19:45:22 PDT 2022
Law Office of
F.ANDREKITA SILVA
_______________________________________________________
September 12, 2022
I’m with Josh on this.
I think Jeff’s practice of meeting with the couple separately as
individuals [ if you can manage to pry them apart … ] is a good one.
It gives each party the space to speak more freely. However, having
separate files, separate meetings, etc., doesn’t change your duty to
protect each client’s interest - even if it means disclosing something
to the other side that you were told in confidence. So, I think it’s
important to secure a written waiver of conflict of interest from each
party always no matter what.
andrekita
Law Office of F. Andrekita Silva
1325 Fourth Avenue, Suite 2000
Seattle, Washington 98101
206-224-8288
www.seattle-silvalaw.com
Quoting Jeff at bellanddavispllc.com:
> 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.
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> Jeff
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> W. JEFF DAVIS
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> BELL & DAVIS PLLC
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> ATTORNEYS AT LAW
> P.O. Box 510
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> 720 E. Washington Street, Suite 105
> Sequim WA 98382
> Phone: (360) 683.1129
> Fax: (360) 683.1258
> email: jeff at bellanddavispllc.com
> www.bellanddavispllc.com[1]
>
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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
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> 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.
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> 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.”
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> 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.”
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> 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.
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> 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).
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> 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.
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> 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.
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> But this has been an incredibly illuminating discussion for
> someone who has nearly all traditionally married couples and no CIR
> partners.
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> 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.
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> Best, Josh
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> FROM: wsbapt-bounces at lists.wsbarppt.com
> <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>
> SUBJECT: Re: [WSBAPT] Long Term CIR
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> 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.
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> 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.
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> 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.
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> Sincerely,
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> Tom
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> Thomas J. Westbrook
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> Attorney at Law
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> 324 West Bay Drive NW, Suite 201
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> Olympia, WA 98502
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> (360) 866-4000 phone
>
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> (360) 866--3832 fax
>
>
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> www.buddbaylaw.com[2]
>
>
>
>
>
>
>
> 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./
>
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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 2:18 PM
> TO: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> SUBJECT: Re: [WSBAPT] Long Term CIR
>
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> Hi Tom,
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> 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.
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> 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! 😊
>
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> All my best, Josh
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> FROM: wsbapt-bounces at lists.wsbarppt.com
> <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>
> SUBJECT: Re: [WSBAPT] Long Term CIR
>
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> I realize that I am on old guy, but my advice here is “run
> Forrest run”……………
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> This has too many traps and is the amount you get paid really
> worth the risk?
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> Sincerely,
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> Tom
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> Thomas J. Westbrook
>
>
>
> Attorney at Law
>
>
>
>
>
>
>
>
>
> 324 West Bay Drive NW, Suite 201
>
>
>
> Olympia, WA 98502
>
>
>
> (360) 866-4000 phone
>
>
>
> (360) 866--3832 fax
>
>
>
> www.buddbaylaw.com[2]
>
>
>
>
>
>
>
> 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
> <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>
> SUBJECT: Re: [WSBAPT] Long Term CIR
>
>
>
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>
> 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.
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> 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.
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> 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?
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> 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.)
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> 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.)
>
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> Good luck!
>
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> Best, Josh
>
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> FROM: wsbapt-bounces at lists.wsbarppt.com
> <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>
> SUBJECT: Re: [WSBAPT] Long Term CIR
>
>
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> Yes separate estate plans work; waiver of conflicts is harder
> because no one really knows what they ‘own’.
>
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>
> FROM: wsbapt-bounces at lists.wsbarppt.com
> <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>
> SUBJECT: [WSBAPT] Long Term CIR
>
>
>
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>
> 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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Links:
------
[1] http://www.bellanddavispllc.com/
[2] http://www.buddbaylaw.com/
andrekita
Law Office of F. Andrekita Silva
1325 Fourth Avenue, Suite 2000
Seattle, Washington 98101
206-224-8288
www.seattle-silvalaw.com
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