WHO WILL GET YOUR BICYCLE?
Lester died last week. Cancer took him at 68.
I went to the funeral because he was a friend and a special client.
“Special’ because he taught me more about writing wills than I
ever learned in law school.
Lester called my office six months ago, insisting on an immediate
appointment. “Sure, come right over,’ I said.
“What’s the problem?’ Lester was a personal friend who
had never consulted me about his legal affairs.
“I can’t tell you now, but it’s an emergency.
I’ll be there right away,’ he said, and he hung up.
I was neither a criminal attorney accustomed to desperate calls
from jailed clients nor a divorce lawyer used to sobbing visits after
marital disputes. Mine was a suburban civil practice whose bread and
butter was real-estate closings, wills and corporations. Still, every
client thinks his case is an emergency.
Lester–dressed as always in Bermuda shorts and a polo shirt, his
standard bicycling garb–walked into my office. “John, I just
received some bad news,’ he began. “My doctor called and
asked me to come down and talk to him about the chest X-ray I had last
week. There’s a spot on my left lung, and you know what that
means.’ He stopped and handed me a rough draft of a will. “I
need your help.’
I nodded understandingly and looked at what he had handed me.
Lester’s draft was short: “I leave all my property one-half
to my wife and one-half to my children.’ The second sentence was
the clincher. “I give and bequeath to my son Lawrence my Raleigh
International bicycle and one-half of my bicycle equipment; to my son
Raymond I give and bequeath my Raleigh Super Course bicycle and one-half
of my bicycle equipment.’ Attached were two typed pages of stocks
and bonds he owned.
Here was a man with a two-page list of stocks and bonds worth a
half million dollars, and he devoted more space in his will to his
bicycle than his money. It was Elvis leaving his guitar, Billy Graham his Bible and Henry Ford his first Model T.
I never saw Lester alive again, but I loved him for letting me
prepare that will. Before then, I had looked upon wills simply as a
mechanical means of passing on wealth–a routine workman’s task
calling for minimum thought from the lawyer. Lester caused me to see
that a will is an expression of values–materialistic and other–a
person has gained during his life and wants to pass on to the living.
Part of a lawyer’s job is to express these personal values in the
will. Lester valued not only money but the health and enjoyment he
received from bicycle riding. He wanted his sons to remember him by
having his bicycles, and he also wanted them to keep the same values he
lived by– regular exercise and good health. This was the personal touch
in his will, and it taught me to include a personal dimension in every
will I draft.
With my new philosophy of writing wills came a new check list of
items to cover with my clients. The standard ones were still there: 1)
Whom do you want to receive your property? 2) Who should be named
guardian of your children if they are minors when you die? 3) Whom do
you want to be your executor? 4) Any charities you want to leave money
to? 5) Will you have enough property for estate-tax problems–an
estate of more than $175,000 for a single person, $425,000 if married.
Added were questions like: 1) Do you have any items of personal value
or meaning you want to leave to a special person? 2) Do you have any
special messages or advice to give to someone?
The last questions cause clients to think about the opportunity to
use their wills for more than a means of parceling out money. One of my
favorite examples is a young advertising executive, anxious to be sure
his children were properly cared for if he and his wife died
prematurely. Young couples do not like to think about wills because it
means focusing on the unpleasant and unfamiliar subject of death.
However, losing a friend in a car accident made them realize they must
consider such a possibility. We spent many hours discussing which
relative should serve as guardian of the children. I advised someone
geographically close so the children’s school and friendships
wouldn’t be disrupted, or a person with children close in age to
theirs. After outlining a lengthy will with guardianship and
insurance-trust provisions, I asked about items of personal significance
“My wine,’ the husband shouted. The opening bequest in
his will is a classic: “I give and bequeath my case of 1961
Chateau Mouton-Rothschild Magnum to my brother.’
I learned quickly that many clients will try to use a will to rule
from the grave. After going through my check list with one man and
exploring his options for using a will to influence people after his
death, he put in the following clause: “$100,000 to my wife
provided she does not remarry.’ Another client insisted on this
one: “I bequeath $25,000 to my grandson on his 21st birthday upon
the condition that he never smoke marijuana or drink alcohol before that
day and that he swear to my executor that he shall never do so
I confess to some misgiving over such dead-hand control. However,
these examples do not shock my conscience as much as a bequest of
“$100,000 to my daughter provided she marry a white man of the
Catholic faith.’ (This clause was the subject of a lawsuit 15
years ago by the daughter who took a husband of another faith. She lost
then but would win today, in my opinion, because of the law’s
greater emphasis on religious freedom.) I recommend using a will to
influence rather than to control, though the line between the two is
difficult to draw.
Many clients want to talk about avoiding probate. This term means
leaving property in other ways than a will. These probate-avoiding
devices consist of joint ownership, trusts and insurance. Each one is
popular and advisable, even with a will. Discussing all of them with a
client makes the lawyer an estate planner rather than a mere will
The most common form of joint ownership is a joint bank account or
joint ownership of real estate, with the words “as joint tenants
with right of survivorship’ after the names of the two co-owners.
In the case of a bank account, money is available immediately to the
other upon the death of one co-owner without having to go through
probate. This arrangement averts delay in using the money and
eliminates the fees of executors and attorneys charged when the account
is probated through a will. The same result occurs with joint ownership
of real estate.
The most common form of a trust is a bank savings account held by
one person “in trust for’ a second. The first person acquires
the total right to use the money up to the point of death, and upon his
death it becomes the property of the second person. Probate and its
delays and fees are bypassed.
The wealthy have used trusts for all types of property for
centuries. The reasons are simple–a trust allows control and use until
death, makes property available to beneficiaries the instant after death
and causes no publicity, because trusts do not become part of the public
record like wills. In the past 20 years, trusts have become
increasingly popular with the middle class for the same reason the rich
have always liked them–the avoidance of the fees, delays and publicity
Notwithstanding the popularity of trusts, the will is still the
basic document of estate planning in my practice for several reasons.
One is that it can be changed, amended or revoked at any time.
Another is that the fee is normally small–$50 to $500 as opposed to a
minimum of $1,000 for a trust. And finally, because even the high
priest of the antiprobate movement, Norman Dacey, recommends a will to
cover things you cannot put into a trust or other probate-avoiding
device. For instance, guardianships for minor children can only be
placed in a will; money for death in a car or an airplane accident can
only be received by an estate (the items the will governs); and only the
will can direct whether estate taxes are to be paid completely out of
the “probate estate’ –that passing under the will or to be
shared by the recipients of the “nonprobate estate’ (the
recipients being those receiving joint property, trust property and
I prefer the will mainly, however, because of what Lester taught
me– that a will can do more than simply pass on wealth to the next
generation. Properly thought out, it can put a personal dimension into
estate plans. A will, in other words, can be a means of making a final,
special statement to special people–a way to leave something that can
mean more than money.