I am an estate planning attorney, but that is not the only thing I do.  I also am a basketball referee, and referee high school basketball.  I have been officiating basketball for many years, and based on my schedule, I work almost exclusively at the high school varsity level at this point.  I have come to learn that referees, coaches, and (most of the time) parents all have the same goal – to make the game fun for the players, who are high school kids.  Obviously coaches and referees don’t have the same role, but we do have the same goal – helping kids learn and enjoy the game, a game they will hopefully develop a love for playing.  I have observed that sometimes coaches, or even referees, can be overzealous in how they try to reach this goal.

As an estate planning attorney, I have the goal of setting up an estate plan to accomplish what you want.  You also want your estate plan to accomplish what you want.  This is similar to the goals of a basketball coach and a basketball referee.

We want to do what is best for the kids playing the game.  A coach does this by teaching his players how to play the game and advocating for his players during a game.  I always appreciate a basketball coach who advocates for his players, but when advocacy crosses over into demands and overzealousness, we are no longer working towards the same goal.   When a coach becomes overzealous in advocating for the coach’s players, it is my responsibility as a referee to reign the coach in and see if we can get back to the goal of the game – teaching the kids the game and doing what is best for them.  The same can happen in estate planning.  Sometimes a client can become overzealous in what they want to do and I need to reign the client in a bit so that we can accomplish the goal of getting their estate plan to do what the client wants.

 

When a Basketball Coach Gets Overzealous

Last month I had a coach who kept telling me that his player was getting fouled on the player’s shot attempt after driving to the basket.  Neither I, nor my two partners, thought that the plays involved were fouls.  We saw the play differently than the coach.  We saw a player who made a move to the basket and either created the contact, or the defender was in a legal guarding position, so any contact was incidental and marginal, so there was not a foul to be called on the play.

The coach was adamant that the player was getting fouled, while we referees were not seeing the same outcome on the plays.  I explained to the coach why we did not have a foul and even talked about the elements of the play and rules involved–so he would know what we were looking for in the next play.  The attempts at communication were to no avail, as the coach kept insisting we needed to call a foul.  Finally he yelled at me, “THAT’S A FOUL!  THAT’S A FOUL!  BLOW YOUR WHISTLE!”

At that point I did blow my whistle and issued a bench warning to the coach for unsporting conduct.  The coach had crossed a line and yelled directly at me, demanding I take some sort of action.  I didn’t want to penalize the players by calling a technical foul on the coach for unsporting conduct, but rather I wanted to officially warn the coach that he had gone too far.  His enthusiasm had gone beyond the normal bounds of the game, and I needed to reign him in a bit.

The coach was advocating for his players, and I understand that, but he did so in a manner that exceeded the bounds of the rules of basketball.  Since the rules of basketball are how the game is to be played, we couldn’t just set aside the rules of basketball.  Sometimes I have clients who ask me to do things that they want, and they want me to be their zealous advocate.  Being a zealous advocate is one of the ethical responsibilities of attorneys.  I will advocate for my clients to the best of my ability, and I do so all the time, but I cannot just set aside the laws and rules of Colorado law because a client really wants me to do so.

 

Your Estate Plan Needs to Follow the Rules

I once had a client tell me that they wanted their trust to distribute money to their child, but only if he, and I quote “married a good Catholic girl.”  I had to inform the client that I was unable to require a marital status or a religious affiliation as a condition of receiving a distribution from the trust, as such requirements would go against public policy.  I also had a conversation with the client about how difficult, if not impossible, it would be to define what a “good” Catholic girl would be.  Unlike the coach, who kept raising the stakes and yelling louder, this client listened to me and asked what I thought the client could do.  I informed the client that we could incentivize the child by offering rewards, like money to pay for a wedding ceremony, or some other way that did not require a particular marital status or religious affiliation.  The client seemed to like those ideas, and we were able to set up their estate plan in a manner that got the client quite close to what the client wanted, if not exactly the way the client first envisioned.

I find clients to be much more accommodating and reasonable than basketball coaches.

Basketball coaches often see things just one way, and always want things to go their way, like foul calls or violation calls.  Coaches want to have the officials always be on their side, when that is impossible for an official to do.  A basketball official needs to enforce the rules of basketball, and enforce the rules equally for both teams, so a basketball official cannot be just for one side or the other.

An estate planning attorney can be a bit more one sided in setting things up to the advantage of the client, but still needs to work within the law and, at least for me, within the rules of Colorado law.  There really aren’t too many restrictions on what you can do in your estate, but there are some restrictions that I cannot just ignore for a client.

 

Following the Rules Makes for the Best Outcome

I have many clients who want to just keep distributions open ended, so that they can decide later who will receive assets.  Unfortunately for these people, a will or trust really does need to have a well defined distribution pattern that dictates who gets assets after the client passes away.

Many of these clients want to be able to change their estate plan whenever they want, and don’t want to use an attorney to do so every time they want to make a change.  I can understand where the clients are coming from, and I sympathize with what they want to do, but the law isn’t set up to accommodate exactly what the client wants to do.  I have discussions about how the client can set up an estate plan now, and make changes in the future, and most of the time clients understand that is just what needs to be done.  Sometimes clients don’t believe me, and tell me they know a different way.  If I cannot convince a client to set up an estate plan that will not last forever and account for every possible situation, then we end up not being able to work together.  We end up more like the coach who yelled at me and set up an adversarial relationship for the rest of the game.

 

Let’s All Work Together to Get a Great Outcome – and Maybe Set Aside a Couple of Basketball Rules!

An estate planning attorney and a client are not supposed to be enemies or adversaries, but rather we are supposed to work together to accomplish the client’s goals.  Basketball referees and coaches also should work together, albeit in different ways, to make the basketball game about the kids, not the coaches or the referees.  Several years ago, I was refereeing a junior varsity game that was a 30 point blowout.  The coach of the winning team asked me if we would object to him playing his team manager, who had down syndrome.  I did not object, and neither did the coach of the losing team.  The manager entered the game and the other players passed him the ball.  The losing team played what could loosely be termed “defense” against him, but all in the spirit of letting the manager with down syndrome get right to the basket, and it only took about 15 steps without dribbling the basketball.  Oddly enough, we called no traveling violation.

The manager missed his first shot, second try, and so on, yet every rebound made it back to him after the ball “deflected” off teammates and opponents alike and back to the manager.  I think he made his 14th attempt, and did so just as time expired, or perhaps 3 – 5 seconds after time expired.  I don’t I have ever been so emphatic about signaling the last second shot should count.  Both teams cheered and celebrated like they had won a state championship, and the manager with down syndrome looked like he could fly – he was so happy.  I’ve had that happy and unique moment once in my 23 year basketball officiating career (other moments have been great, but this was my favorite), and we only had to ignore a couple of rules to make it happen, but everyone was working together.

We cannot ignore laws in an estate plan like we did the basketball rules in this story, but we can all work together to make your estate plan work…so we can all celebrate you after you are gone, just like everyone celebrated the manager’s last second shot.