BEWARE OF FALLING SNOW

That is what the sign outside the Omni Parker House in Boston read on the day I met Jimmy. This led to a lengthy discussion between the two of us on businesses’ premises liability. Premises liability is the legal term used to describe a real estate owner’s duty to visitors (or, in legal terminology, “entrants”) to the property.

In Massachusetts, all real estate owners owe a duty of reasonable care to all lawful entrants upon their property. This includes a duty to reasonably inspect and a duty to make safe or warn. Here, because the Omni Parker House simply posted large, ridiculous signs that said, “BEWARE OF FALLING SNOW,” they most likely eliminated their liability should a big ol’ snow chunk fall on an unsuspecting passerby.

Jimmy told me about a major office building nearby that takes this one step further. They not only post signs to warn of falling snow and ice, but even hand out umbrellas to people as they leave the building. While this may be a bit too overcautious, the lawyers and accountants for that building’s management probably figured that it is cheaper to give out umbrellas than to even risk a lawsuit. This makes sense in this day and age, when even the very existence of a pending lawsuit – regardless of its strength – can be very expensive.

COMPLIANCE PRACTICE

An attorney I worked for a couple of years ago told me that most of the practice of law does not involve litigation; rather it is about compliance. Litigation is almost always a last resort because of the great expense and vast amount of time it can take. As Danny DeVito’s character, Lawrence Garfield, put it in Other People’s Money when discussing lawyers: “They’re like nuclear warheads. They have theirs, so I have mine. Once you use them, they [screw] up everything.”

GET A GUARD DOG

My parents’ Yorkshire Terrier, Bella (whom I discussed recently), epitomizes the type of attorney you should have.

Bella is normally a relatively quiet dog – with a caveat: Whenever anyone sets foot into my parents’ house – or comes near it – and Bella sees or hears them, she barks like crazy. She runs over to the person and does not rest until she sees the person, sniffs them, and – occasionally – licks their toes. In short, she is the perfect compliance lawyer.

This is not to say that your attorney should be actively sniffing you. That is probably a bit over the line. And if your attorney asks to lick your toes, you should probably leave his office straight away.

To put things another way: When Bella detects a disturbance – a new person, a new noise, that sort of thing – she perks up and focuses on it. Then, she immediately rushes to investigate, to ensure that the source of the noise is in compliance with how things in and around the house should be. Once she confirms the compliance, she turns back to her sweet, smiling self.

Granted, we have never seen Bella in a situation with an actual intruder who needs to be bitten and mauled by a Yorkie in a fairy costume; we don’t know if she would actually attack a bad guy, or simply lick his toes and happily prance away. It is the suggestion of the security that Bella provides, however, that is important. Bella keeps the bad guys at bay (presumably), and that is all that is important. What she would actually do to a bad guy is irrelevant.

The same is true of lawyers. The best use of lawyers is not as attack dogs – but as guard dogs. The ideal (and probably cheapest) time to hire a lawyer is before you need one. The best way to put a lawyer to good use is to have him provide you with the security and peace of mind in knowing that you are ready for anything. We lawyers like to be prepared – and to help our clients be prepared as well. That is how we thrive best.

If you have any questions about your premises liability, your estate plan, or other matters of preparation, contact an attorney you can count on today.

STANGANELLI’S FIRST LAW OF ECONOMICS

No matter the state of the economy – and how good or bad things may be – someone is getting rich somewhere.

I studied historical economic markets. Someone, somewhere, is always making money on a rising stock (or, in the case of a short sell, a falling stock). Some business is always performing swiftly. There were people who amassed large fortunes even in the Great Depression.

(Speaking of the Great Depression, and in the spirit of continuing to include interesting recipes on this blog (even though it’s a law blog), I found this recipe for Depression Cake online. Depression Cake was a common dessert during the Great Depression; most recipes do not use sugar, milk, or eggs, because they were scarce and expensive during the Great Depression. Anyway, try it out. Who knows? With the economic climate these days, it may become popular again.)

I also read cases – and saw a glimpse of the amount of litigation there is in the country.

STANGANELLI’S SECOND LAW OF ECONOMICS

Where Party A and Party B are separate entities in a given set of economic circumstances, three outcomes are possible: 1.) A wins, B loses.

Even among attorneys, however, the effects of economic collapse are felt. Presently, I know a lot of lawyers who are actually not faring so well right now. Many are out of work, and most others have seen their practices want for business. Additionally, a recent American Bar Association survey indicates that 69% of attorneys in the United States report that they will be negatively impacted by the recession – with a whopping 19% expecting to lose their jobs entirely.

Nonetheless, in the decaying fields of economic downturn, there are patches to be found where the grass is greener.

C SOMETIMES WINS

The American Bar Association puts out a monthly publication known as the ABA Journal. This month’s issue (billed on the cover as a “SPECIAL RECESSION ISSUE”) features a piece about Eleanor Breitel Alter, who heads up her law firm’s family and matrimonial law department (in other – more relevant –
words, she’s a divorce lawyer).

While bankers and lawyers and others pinch pennies, Ms. Alter finds her divorce practice to be doing just fine, thank you. “Moneyed spouses” whose jobs and/or stock have “gone to the devil” – as Ms. Alter puts it – are flocking to get divorced – when they might otherwise have waited – in an attempt to limit a court’s determination of their earning power. Additionally, people who are already divorced are bombarding Ms. Alter’s office with requests to get a permanent divorce order or separation agreement changed – in light of the economically bleak times.

Aside from the intellectually droll revelry to be had in observing Ms. Alter’s circumstances (i.e., a successful divorce attorney whose surname is a homonym for the sacred table at which her clients once wed) (get it?), it is clear from the article that, as the economy changes, people are making changes in their own lives that impact their assets and their families.

CHANGE

This leads me, albeit somewhat circuitously, to the topic of estate planning.

Anytime you marry, remarry, divorce, annul, or otherwise change your marital status, your estate plan may be dramatically impacted.

For starters (and I am going to type in all caps now to emphasize the drama of this point): MARRIAGE ALMOST ALWAYS VOIDS YOUR WILL.

When you marry, with rare exception, any will that you have becomes null and void. Once this happens, you need a new will unless you want your estate plan to be governed by intestacy.

INTESTACY

Intestacy is a fancy lawyer word for “the government gets to decide who gets your stuff, regardless of your wishes.” Many, many trees have been killed in publishing the complex laws that dictate how an estate is distributed in intestacy. And regardless of how it turns out, the lawyer (“C”) will definitely win.

(Intestacy can be especially distasteful when a person dies with no next-of-kin remaining. If this happens in Massachusetts, for example, the deceased’s property goes to the state government.)

Intestacy, quite obviously, is usually a bad idea. The advice I would typically give to a client is to pony up the dough to fix up a will now so that his/her loved ones don’t have to deal with a probably more complex (and probably more expensive) probate process later.

“YOU’RE DEAD TO ME!”

Divorce does not a void a will, but it does treat the divorced spouse as being already dead. This means that, when a court interprets your will, they will totally ignore anything that mentions the spouse you divorced. This probably seems like a good thing.

The problem arises, however, when alternative arrangements are not made. Let’s look at a basic example. Jack has a simple will that leaves everything to his wife, Jill, and names Jill as his executrix. A year later, Jack and Jill divorce. Several years after that, Jack dies – without ever having updated his estate plan. Now, the court will distribute all of Jack’s property will be via intestacy. Additionally, because no executor/executrix has been appointed (remember that Jill is treated as predeceased!), probate may be delayed because of the process of appointing an appropriate administrator for Jack’s estate. Time is money, and probate delays can be costly. This is not a good thing (except for “C”).

With rising divorce rates among society’s better heeled, estate plans will be impacted across the board. Naturally, if you are divorced, or considering getting married or divorced, contact an estate planning attorney to review your estate plan. Your estate planning attorney can help you make sure that your assets are distributed according to your wishes – no matter what happens.

JOKE OF THE DAY: How to Get Rich

“Then my wife’s father died and left us two million dollars.”

LOOPHOLE OF THE DAY: The Honorary Trust

Every trust has a purpose. Without a purpose, a trust fails.

The Honorary Trust was originally a device a grantor used as part of his last will and testament to ensure that one’s family members would take care of a piece of land or property – usually the grantor’s tomb (the grantor was frequently too distracted to take care of his tomb himself, being dead and all). Under an honorary trust, the beneficiaries use the money to take care of the designated property. They are under no legal duty to do so, but once they stop doing so, the trust’s purpose (i.e., the care and maintenance of the “honored” property) becomes frustrated, and the beneficiary loses all right to the trust money.

Obviously, a good way to ensure pet care post-mortem in states that have not legislated “pet trusts” is to set up an honorary trust to take care of the pet in question. Here, the pet is not the per se beneficiary, but receives the benefit of the trust funds by way of the human beneficiary. The human beneficiary is a beneficiary in name only; s/he is more of a guardian.

The trend is increasing in a number of states, however, to treat animals more like humans. Some states are making it easier to leave money to one’s pets outright. Additionally, as long ago as 1997, a Washington state court held that a chimpanzee could be an outright beneficiary of a trust (with a guardian ad litem, naturally).

SHE LOVED TROUBLE

For a nice, extreme example of the Honorary Trust in action, we need look no farther than the somewhat recently departed Queen of Mean herself, Leona Helmsley. The hotel empress and convicted tax evader provided in her will for a $12,000,000 trust to benefit (by way of a human beneficiary/guardian) her Maltese (“Trouble”) – an amount larger than any single bequest in Helmsley’s will. The appointed trust beneficiary/guardian estimated that care for the dog would run approximately $140,000 annually (most of this being for security; poor little Trouble had death threats against her at the time). Trouble’s veterinarian estimated that Trouble would live only another three to five years. In light of this information, a New York judge reduced the amount of Trouble’s trust from $12 million to $2 million – but upheld the trust otherwise (much to the chagrin, I imagine, of the human beneficiaries of Leona’s will).

So what’s the moral of this story? Well, I suppose it’s this (with apologies to the Helmsley Hotels):

If Leona Helmsley wouldn’t settle for an estate plan that didn’t adequately care for her pet, why should you?

BELLA’S BIRTHDAY CAKE

As I mentioned above, Bella had a birthday cake at her party.

The cake is good for humans too. I had some. It is delicious.

Here is the recipe:

INGREDIENTS:

1 cup flour
1 tsp. baking soda
1 egg
1/4 cup peanut butter
1/4 cup vegetable oil
1 tsp. vanilla
1 cup shredded carrots
1 tbsp. honey (optional)

ICING/DECORATIONS: Cottage Cheese, Peanut Butter, Shredded Carrots

BAKING INSTRUCTIONS:

Mix flour and baking soda.
Add remaining ingredients.
Pour into greased 8″ round cake pan.
Bake at 350° for 30 minutes.
Let cool.
Puree cottage cheese in blender.
Ice cake with cottage cheese
Decorate with more peanut butter and carrots.
Serve and enjoy!

To see more of Bella, visit her website (yes, my parents have set up a website for her) at http://www.bellanaples.com.

- Joe Stanganelli, Esq.