How to Avoid PROBATE! by NORMAN F

How To AvOID PROBATE! by NORMAN F. DACEY New York: Crown Publishers, Inc. 1965. p. 361. $4.95 Charging across the landscape of the best seller list comes Ajax, the White Knight, approaching three scruffy and grubby children whose first names are all Probate and whose last names are Delay, Expense and Publicity. Levelling the lance of Living Trust at these deplorable urchins, he thunders by, and lo! they are white as snow. The horse named Property has passed quickly, bearing its rider securely clad in Mutual Fund to an Object of Bounty. The vision fades. After the giddy exhilaration has passed, prompted in part by the use of the exclamation mark in the title of the vision, How to Avoid Probate!, one may come to wonder if the children so magically transformed really came that clean and whether the White Knight is all so pure. Norman F. Dacey superficially has mounted a polemical vendetta against lawyers, judges, probate law and legislators. The basic proposition which' the book seeks to establish is that lawyers feed as para- siteson a dead man's property through the existence and maintenance of an unconscionable system of probate administration, amounting to, in his words, "a high-class racket." The proposition is established emotionally by use of such high-charged adjectives and phrases as "hocus-pocus," "rigmarole," "weird and wordy," "insidious," "logi- cal legerdemain," "streamlined voodoo," "chromium-plated theol- ogy" and "mumbo jumbo," resulting in the conclusion by:the author that "the vaunted majesty of the Law is a hoax." The proposition thus established, however questionably, is then put to further use in two silly syllogisms. The first relates to the judges and courts. Since lawyers are engaged in a parasitical high-class racket, and because "a judge is simply a lawyer who knew a governor," therefore judges are engaged in a racket. Any remedy is impossible in the author's view because relief depends on legislative reform and the second syllogism expectedly is that since lawyers are engaged in this racket and because many legislatures have a substantial composition of lawyers, legislatures are also engaged in the racket. GONZAGA LAW REVIEW [Vol. 2 Indeed, of all those functionaries which may become involved in the administration of a decedent's estate, none escapes unscathed. Some amnesty is granted insurance salesmen, perhaps representing a mellowing since the author's publication in 1962 of his first book, called What's Wrong with Your Life Insurance! "Are you buying life insurance-or financial disaster?" The amnesty comes on two conditions: first, that the insurance be term insurance and, second, that its proceeds be used to buy mutual funds on the death of the decedent. Conditional amnesty is also granted the trust departments of commercial banks, provided they are willing to accept trusts for the purpose of receiving and paying out money only, the trust prin- cipal to be kept solely in mutual funds and its investment there to be handled by the managers of the mutual fund whose capabilities are to be accepted on faith. Thus, under this excoriating wrapper of condemning the bench, the bar and the probate law lies the real package-the sale of mutual funds implemented and assured on the establishment by the purchaser of a "Dacey trust," and a "Dacey will." The purchaser sets up a revocable inter vivos trust naming himself as trustee and a "co- operating" bank as successor trustee. The corpus of the trust is com- posed of substantially all of the settlor's intangible personal property and insurance policies. On the death of the settlor, the insurance proceeds are receivable by the successor trustee, and used to pur- chase shares in a named mutual fund from a named dealer in that fund. As observed by the supreme court of Connecticut in Grievance Committee of the Bar of Fairfield County v. Dacey, 154 Conn. 129, 222 A.2d 339, 347 (1966): Itis true that the Dacey Trust arrangement was an excellent method of selling shares in mutual funds. Indeed, the commissions involved on the future sales of Wellington Fund shares to the trustees may well run to several hundred thousand dollars. But the defendant cannot practice law as a method of selling mutual funds, any more than the banks, in the case he relies upon, could draft wills and trusts to augment the profits of their trust departments. The revocable living trust, billed by Mr. Dacey as a "wonder drug," is, of course, recognized as an essential tool by the practicing lawyer. It has, in addition to the advantages of privacy and acceler- ated transition from the settlor's ownership to that of his beneficiaries on his death, a number of other desirable features. In a mobile so- ciety, it can place the settlor's property in a desirable jurisdiction. It may forestall possible attacks on the disposition the settlor desires. It will avoid interruption of management of property administration. March, 19671 HOW TO AVOID PROBATE If designed as a convertible living trust, to become irrevocable upon the incompetency of the settlor, it may avoid the necessity of an ad- judication of incompetency and provide for the continuation of the management of the property and application of its income for his benefit during a period of disability of the settlor. But "wonder drugs" are dispensed only upon prescription by competent physicians, and revocable trusts likewise should be used and drawn with advice of counsel. Some parallels to the great krebiozen furor in the medical field suggest themselves as Dacey proceeds to assert that lawyers will not recommend the use of a revocable inter vivos trust because it keeps the property of the trust from going through probate administration and from becoming a part of the base upon which attorney's fees would otherwise be imposed. While it would be relatively easy to brand the criticism of the legal profession and the law contained in this bellicose paperback as extravagant and irresponsible, candor requires acknowledgement that the probate procedure in many jurisdictions is archaic, ponderous and excessively complex; that in some jurisdictions gross abuses have occurred and continue to occur, due largely to the unsavory practices of political patronage; and that there are, regrettably, among us those who make their own interests, rather than those of their clients, paramount. Action can, has been, and is being taken to correct such conditions. In our own state this has been particularly apparent. A new Probate Code was enacted by the 1965 session of the Washington legislature which did much to modernize and simplify routine probate administration. The political patronage of the appraiser system in Washington was largely elimi- nated by the same legislature. An integrated bar association in this state makes discipline of its members far more effective than may be the case in states not having an integrated bar. Criticism of the bar, the bench and the law, of course, is not new. It is, however, the misfortune of our age that we have been denied the literary delights of that kind of criticism of which Charles Dickens was capable when he gored the ox of the English Courts of Chancery in Bleak House. The raw afternoon is rawest, and the dense fog is densest, and the muddy streets are muddiest, near that leaden-headed old obstruction, appropriate ornament for the threshold of a leaden-headed old cor- poration-Temple Bar. And hard by Temple Bar, in Lincoln's Inn Hall, at the very heart of the fog, sits the Lord High Chancellor in his High Court of Chancery. Never can there come fog too thick, never can there come mud and mire too deep, to assort with the groping and floundering condition GONZAGA LAW REVIEW (Vol. 2 which this High Court of Chancery, most pestilent of hoary sinners, holds, this day, in the sight of heaven and earth. No such literary aspiration moves author Dacey. In Bleak House and in the High Court of Chancery Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five min- utes, without coming to total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce, without knowing how or why; whole families have inherited legendary hatreds with the suit. Dickens' purpose was to criticize, not condemn, and thereby a counterpoint was added to his criticism. The heirs of Jarndyce themselves, by their greedy and avaricious contentions and disputes, wrought their own destruction. Any valid criticism of probate law and administration must recognize this factor of human nature. As heirs will fight, the court, of necessity, provides the arena. It does not start the dispute, but seeks to resolve it in orderly fashion. As decedents will be unduly influenced, or will treat the natural objects of their bounty unfairly, the court, of necessity, seeks to rectify. Nor is the 'contentiousness of litigating heirs the only factor which must be recognized. Between the benign decedent and his heirs in sweet accord stand the rights and claims of the sovereign, to tax, and of third parties to be paid, to have performance, or to be compen- sated. The factors involving heirs and those' involving third parties are: not even considered by Mr.

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