You are here: Home / Blog

by 2 Comments

Reprint from the Asheboro Courier-Tribune, June 16, 2017
Bob Mason

Macon, Georgia. Cherry Street. November, 1975. After midnight.Cherry Street

My partner and I decided to hit the dive, shoot some pool. Half work and half unwind, we were never really “off.”

A new Caddy slipped in next to us. Rangy, sandy hair hanging past his shoulders, Mr. Caddy squeezed out of his ride and flowed toward the bar.

A bored glance our way. He looked rather mellow. In fact, very mellow. Hooded green eyes, a well-trimmed beard and a noticeable soul patch.

“Hey! Lights are on, man.”

“They’ll turn off.” He strolled into the dive. We followed.

Beers in hand, looking as cool and laid-back as possible, my partner and I gave the slightest nod and grin to each other. For a moment, I knew how a Navy pilot might feel breaking through the clouds and unexpectedly seeing the entire Japanese fleet before him.

Greg Allman 1977

Greg Allman 1977

Greg Allman swayed a bit toward the pool tables and started talking to folks he obviously knew. We’d just watch – but be COOL.

My partner (“Possum”) and I were now working. We were undercover agents with the Georgia Bureau of Investigation. Painfully young, he was just 22 and I was working on 24. But we were good – we fit in with that crowd without turning an eye.

What Greg didn’t realize, we were the leading (and junior) edge of an investigation involving both state and federal authorities aimed at J.C. Hawkins and the Dixie Mafia (mostly drugs, but a fair amount of auto theft, extortion, insurance fraud . . . you name it). Rumors in law enforcement were that Allman’s road manager and others with Capricorn Records tied into the drug piece.

In retrospect, I think we were meant simply to collect intel and send it up to Atlanta.

After an hour Allman left and so did we. I never saw him again.

I had mixed feelings. I loved the Allman Brothers Band. “Sweet Melissa.” “Jessica.” “Statesboro Blues.” “Midnight Rider.” The soundtrack of my college-years.

On the other hand, I had a job to do. I was a rare breed, being a 1970s university graduate down on drugs. Imagine!

During this time Possum and I were hanging around another basement bar with live entertainment (most of it good; Macon and Capricorn records attracted talented wannabees).

We got chummy with Gary Vesecki, a Capricorn roadie from New Jersey. Big boy. No, huge. Biker look. Nice guy, but don’t cross him. He also liked coke (the white stuff, not the bottled).

Finally, I poured out my heart to Gary. Told him my grandma who raised me had just died back in Nebraska (I was smart enough to never fake a southern accent) and I’d be gone a week.

Actually, grandma HAD died about six months earlier and my Nebraska accent was quite real. Undercover it’s best to keep your story close to reality. The reality was I had a week off and had to explain my absence.

Upon my return Possum and I were generous around the bar, with Gary in particular. After all, I had just inherited a hundred grand from Grandma. Actually, the taxpayers of Georgia caught the tab.

With bucks to burn, it was time to ask Gary if he knew where we could pick-up some good coke, maybe a key (kilogram, that’s 2.2 pounds) or two.

The deal, was a classic “buy-bust.” We showed them $40,000, they showed us the dope, we showed them guns and badges.

Gary sang and got several years. The sellers sank.

Later the next spring, the feds slammed into J.C. Hawkins. It was the first time the feds had used RICO to secure a criminal conviction.

Nine years later, I returned to Macon to study law. Both Mercer Law School and Macon have a place in my heart and memories.

About 1980, Possum (coat and tie, major investigations) pulled in to a state patrol post to gas up. A big clean-shaven inmate came out to do the fueling. After a few moments, the inmate asked, “You Possum?”

“Uh . . . yea, why?”

“Gary Vesicki. Wanna thank you. I’ve almost got my bachelor’s degree. I’ll be out soon. You guys saved me.”

I often wonder what Gary’s up to.

Greg Allman cleaned-up his life, still making music with a measure of peace when he died a few weeks ago. Rest in peace, Greg.

Possum and I are still buddies. After a long GBI career he married my former secretary, lives in Savannah and now looks like Jerry Garcia.

 

Filed Under: Nonlegal Ramblings

by 2 Comments

A reprint from the Asheboro Courier-Tribune, June 2, 2017

A commencement address I never gave, nor will ever give, because I’m just a lawyer in Asheboro and not nearly edgy enough in a counter-cultural sort of way.

Here goes –Graduation

Your Chancellor Edward Myers was a classmate of mine at Northwestern. Eddie and I remained friends as we went our separate ways, he to build a career in academia. As you know, this is your chancellor’s last commencement as he looks forward to retirement.

Over a bourbon last year, he lamented the amount of rears he had to kiss and how he had burnt a Texas-sized ulcer having to bear all the PC nonsense necessary to maintain an academic career (and a healthy pension).

That’s over now, thus his invite to me after your previously invited speaker landed on the TSA “No-Fly” list.

Eddie said, “No one’s heard of you, Bob, so they won’t get all spun up. Give ‘em hell, Bob!”

Graduates, your families’ pride is likely tinged with some relief you’re off their hands, combined with a little apprehension that you might not be given your nearly worthless major involving Non-binary Indigenous Populations in Post-Columbian South America.

The rest of us? All we care about is whether you are fully equipped to join us in this enterprise we call society.

So here are some pointers that will help ease your transition into the real world.

Once you trot out of this coliseum (I see many of you already headed for the exits) there are no more safe spaces. None – unless you’re going to stick around academia and teach.

Life is not safe. When your boss tells you to have a project complete TOMORROW you will not feel safe. Share with him that you feel unsafe and you will be unemployed.

You will constantly be exposed to the unfamiliar, the novel, the challenging. Some of it will be good for you and some of it not. That’s where the “virtue machine” comes in. Run everything through it.

Plato boiled it down to four virtues. Relax, Plato was a pagan, so I’m not getting all bible-thumpy on you.

Prudence – the ability to govern oneself, and relations with others through the use of reason or wisdom (NOT feelings).

Justice – a halfway point between pure selfishness and pure selflessness, or as Aquinas put it, “rendering to the other his due.”

Temperance – does not mean “don’t drink.” It means moderation and balance in all one does. Ponder restraint from arrogance, anger, revenge, impulsiveness.

Courage or Fortitude – a willingness and ability to confront pain, intimidation, or uncertainty. A person acting rightly or virtuously in the face of social opposition is showing courage.

Work on these! Really! If you do, you’ll have a leg-up on all the clowns in this coliseum who are rolling their eyes.

Open your ears and listen! Engage. Remember always that you might just be wrong. There are usually two sides to every story. Run what you hear through the virtue machine. You will not feel safe at first, but you’ll get the hang of it.

Respect is not an entitlement. All people as children of God are entitled to a base level of innate dignity. I love all of you, which is why I am risking your catcalls, because I want you to be able to do the best for yourselves and future families.

But respect? You’ll need to earn it.

Finally, get over envy. Some folks will always accumulate more assets than others, sometimes dramatically. Growing income and asset disparity is a concern for one reason only. It tends to concentrate political muscle in the likes of George Soros or the Kochs. We need, and can, address that.

But disparity arguments rest in terms of relativity and base envy. I am dirt poor compared to George Soros, but I don’t feel any the worse off.

The wealthiest 400 families in the USA control $2.34 TRILLION in assets! Shocking. But dig deeper. If we shot every one of those folks and liberated those assets, passing them out equally among our population of 330 million there would be – ready? – just $7,090 per person.

Further, much of the $2.34 trillion is locked up in ownership of companies like Facebook, and Amazon, and Berkshire Hathaway. These outfits would need to be liquidated; difficult and not good for the unemployment rate.

Focus on building yourselves up and helping others up, not pulling others down.

Eddie? I told you I could clear the coliseum. Let’s get out of these hot robes and go have a beer, buddy.

 

Filed Under: Nonlegal Ramblings

by

Many people make big mistakes titling bank and investment accounts. Often advisors and bankers advise customers to “put your child’s name on the account” or to set the account up as a “pay on death” (or “POD”) account. However well-intentioned the advice, the results of either approach to titling an account can be surprising and unpleasant. Good intentions do not constitute good advice.

The Allure of Joint and POD Accounts

Often, the attraction is probate avoidance. Either a joint account with survivorship features or a POD account will pass as a nonprobate asset and avoid the state-mandated probate process.

With respect to joint accounts, the attraction is often convenience. Unlike a POD account, a joint account holder has immediate co-ownership rights, and, thus, immediate access to the account. An older person may feel better knowing that a trusted son or daughter has immediate access to an account “in case something happens.”

The Dangers of Joint and POD Accounts

If the POD or joint account payee is a child with disabilities, the result could be terrible for the child upon the parent’s death because the receipt of the account could jeopardize continuing qualification for public benefits such as Medicaid or SSI (to the extent those programs are relevant).

There are other compelling reasons why a “joint account” may not be the proper approach:Bob worried

The co-owner child now owns the account as much as the parent. What if the child is sued? What if the child goes through a messy divorce? Or what if the IRS takes a keen interest in the child’s affairs? Those events happen to the best of children; nevertheless, in those cases the joint account will be deemed to be owned by the child.

Another problem is that the co-owner/child’s siblings may be “out of luck.” This happens all the time. For example, Mom wanted the kids to share equally, but after Mom is gone Sis suddenly “recalls” that Mom wanted her to have the accounts since she “was the one who always helped Mom.” Because Sis was a co-owner of Mom’s accounts and likely had “survivorship” rights, she owns the accounts now – and there is nothing an attorney can do about it.

A Better Way

If the goal is asset management in the event the owner becomes incapacitated, the best approach is a properly drafted power of attorney.

A “power of attorney” has nothing to do with appointing lawyers. The word “attorney” has its roots in an old French Norman word for “legal substitute”. A “power of attorney” is simply a document signed by someone called the “principal” appointing an “attorney-in-fact” or “agent” to manage some or all of the principal’s financial and business affairs.

The terms of the power of attorney control what the agent may, or may not, do. If the document covers a broad spectrum of duties, then it is a “general” power of attorney. An agent can be given very broad powers, and if that makes the principal nervous the instrument can require the agent to secure some other person’s permission.

It used to be that a power of attorney would lapse when the principal became incapacitated. That did not do any good if what was intended was to cover the situations when the principal did become incapacitated. The law stepped in and provided that a power of attorney could be “durable” (or be valid after the incapacity of the principal). Most powers of attorney now are “durable”.

If the goal is to avoid probate upon the death of the account owner, the likely better approach is a revocable (or living) trust. The assets in the trust will avoid probate. In fact, a revocable trust can also assist in post-incapacity management because a successor trustee named in the trust agreement can step in to handle continuing asset management. The assets in the trust are also protected from the trustee’s personal liabilities (in other words, the trust assets are not exposed to the trustee’s own problems with creditors).

Finally, all of the above considerations especially apply if there is a child with disabilities. There will rarely, if ever, be an appropriate time to name a child with disabilities as the co-owner of a joint account or the beneficiary of a POD account. Carefully consider a special needs trust, either under a will or as part of a revocable trust, to hold that child’s intended inheritance. Properly drafted, the special needs trust assets will not jeopardize the child’s continuing eligibility for various public benefits.

Here’s the point: Do not put the kids on the accounts as a joint owner. Instead, execute a power of attorney that grants the sorts of powers to the kids you are comfortable with to take over business affairs when, and if, they need to. Alternatively, consider a revocable trust. In the meantime, keep the accounts in your name.

Finally, Never Say Never . . .

Now that I have you all excited, you might need to relax.

The practice I have just disparaged might not be so bad in the case of an only child, or if Mom is absolutely certain that she wants child to have the account to the exclusion of the other siblings. But in that event, Mom should still be sure that the child, whose name is on the account, is not going to end up losing the account to creditors because the child’s name is on the account as an owner.

The downside to the advice given here: Some fees to a lawyer. There is, however, an upside: You may avoid a real mess.



Filed Under: Banking, General, Miscellaneous, Reader Favorites, Trusts generally Tagged With: , , , , ,

by 4 Comments

Trick question:

broken swing seat.Good at spotting patterns? If so, read the following list of European leaders (controlling most of Europe’s economy and population) and see how on top of things you are. Go!

What do Theresa May (British Prime Minister), Angela Merkel (German Chancellor), Mark Rutte (Dutch Prime Minister), Emmanuel Macron (French President), Stefan Löfven (Swedish Prime Minister), Xavier Bettel (Luxembourg Prime Minister), Nicola Sturgeon (Scottish First Minister), Paolo Gentiloni (Italian Prime Minister), and Jean-Claude Juncker (European Commission President) have in common?

Well? Did you get it?

Children! There’s nary a one among them. All childless.

First, reasons may vary. Many people would dearly love children and haven’t been so blessed. My heart goes out to them. My wife and I once feared this, until our son made his entrance (both of us in our forties).

On the other hand, facts may suggest more than coincidence and establish a pattern. I have a few thoughts.

Do you recall first holding your child? Do you remember what you felt? Did you ever stay up late taking care of a sick child, or comfort a heart-broken child (mean friends, a lost pet)?

Upon my son’s birth, I called my best friend Bob Gibson and said, “My replacement has arrived.” Levity aside, the event gave me a strange connection to those in my line who came before (they have been traced back to the French and Indian War and in Scotland and England into the dark mists of the past, thanks to a genealogist-sister). Looking into his dark and trusting eyes I felt them looking back.

But also – I felt a real stake in the future. A future that would likely be populated with my issue. I cared about values to pass on, about his heritage, about religious principles, about ideas of right and wrong.

Many of you have felt the same. I’m not unique.

Those leaders I listed above (all talented people, to be sure) have not.

It goes deeper. 30% of German women have never had a child (make that 40% for university graduates). The “replacement rate” necessary to sustain a western population at current level is 2.1 children per woman. Germany is around 1.4, other European countries range from 1.4 to 1.8. The US is around 2.0.

Of course, having babies is a personal decision based on many factors. But those personal decisions have existential consequences for society. And if that society has any concern for its future, there are measures the society can adopt to encourage those personal decisions in a positive direction.

Rüdiger Safranski, a German philosopher (still very much alive), speculated that for the childless “thinking in terms of the generations to come loses relevance. Therefore they behave more and more as if they were the last and see themselves as standing at the end of the chain.”

To this Baylor’s Philip Jenkins added “Without a sense of the primary importance of continuity, whether of the family or the individual, people lose the need for a religious perspective.”

According to Germany’s Defense Minister, Ursula von der Leyen (herself a mother of seven and a trained physician), unless the birth rate picks up “we’ll have to turn the lights out.”

Europe is now, in terms of Christianity, the most secular continent on earth. For those who are not Christian (either by birth or choice) the decline may be welcome – or perhaps inconsequential. But such a decline does not necessarily advance the growth of scientific humanism as much as the growth of other religions poised to fill the void.

The irony of the secular European state is that it will not encourage and nurture the attributes necessary to sustain itself, and will demographically result in its giving way to other systems and cultures that are anathema to its secularist values.

Part of the secularist mindset is not the maintenance of true political community but rather the supreme sovereignty of the individual. And in so doing, with each going her or his own way, it becomes increasingly difficult to assimilate the newcomer.

The French (and other Europeans) have failed miserably at this, creating ghettos or banlieus of “native born” French who are no more French than I am.

As Douglas Murray (a politically conservative, gay, atheist executive director of a London think tank – that’s quite a combination) wrote recently in the Times of London, “Europe has little desire to reproduce itself, fight for itself or even take its own side in an argument.”

Sad. So very sad.

Bob Mason is owner of Mason Law, PC, a statewide law practice based in Asheboro devoted exclusively to solving problems for elders, the disabled and their families. A Board Certified Specialist in Elder Law, he is a two-term past chair of the Elder Law Section of the North Carolina Bar Association and vice chair of the N.C. Board of Legal Specialization. Contact: Follow Mason Law, PC on Facebook at facebook.com/masonlawpc or at masonlawpc.com.

Filed Under: Nonlegal Ramblings, Uncategorized

by Leave a Comment

Original in Asheboro Courier-Tribune, May 5, 2017

GravestoneWhen people die, they’re no longer alive. Now that I have amazed you with my steel-trap legal mind, allow me to explain.

It happens a few times a year. The son of the departed comes in about a month after the funeral and says, “I’m glad I have Mom’s power of attorney because I have been able to keep on paying the bills.”

Dude, you don’t. Have Mom’s power of attorney, that is. It terminated the moment she died. In fact, by handling things the way you have you might be creating some legal difficulties for yourself.

Until an executor (if Mom had a will) or an administrator (if she didn’t) has been appointed, no one has clear authority to deal with Mom’s assets.

You may think joint accounts will completely avoid the necessity of appointing an executor, but think again.

True, joint accounts can pass free of much of the probate process, those, too, have some drawbacks. There are a number of statutes that govern joint bank accounts, and depending upon which statute the bank relied on, some of the account funds can be held until an executor has been appointed. True, the other joint account holders “own” the account, but the executor can look to Mom’s share to pay creditors if her other assets were insufficient.

Once an executor or administrator has been appointed (let’s say it is Son), he must determine what creditors there are and insure they are paid properly. If he doesn’t, he is personally on the hook. This can be particularly tricky if the estate owes more to creditors than it is worth.

Not all creditors are created equal. Some have higher priority than others. If lower priority creditors are paid before higher creditors, or if creditors of equal rank do not share proportionately, Son is on the hook. There are even limits on funeral costs.

That is why state law allows costs of administration (which includes legal fees to cover legal advice to Son) before other creditors are paid. You don’t have to have an attorney to help you settle an estate, but often what you save by skipping the attorney can be skimpy compared to the costs of messing up something expensive.

Another reason for Son to make sure creditors are handled correctly is that North Carolina law provides an open and shut way of quickly identifying creditors, forcing them to file a final claim or bill, and getting them paid. If Son handles the process correctly, late filing creditors lose out.

The executor (or administrator) must make a good faith and reasonable effort to identify all creditors. This means Son cannot decide to ignore looking through Mom’s top desk drawer where she kept all bills and important papers.

Once creditors have been identified, if they are given notice in proper format to file a final bill with the estate within 90 days they must do so – or lose out.

Finally, Son must run the little postage-stamp-sized ad to notify any unknown and undiscovered creditors to do the same.

If he does all that, he should be in good shape.

Are revocable trusts better? Somewhat. Sometimes. You can avoid much of the hassle of estate administration, but creditors of Mom can still reach the assets in the trust. Fortunately, there are streamlined ways to put the creditor issue to bed without a full estate administration.

The trustee of the trust can file with the clerk of court to be appointed a limited personal representative for purposes of taking advantage of the creditor notice provisions without having to comply with the myriad other requirements that apply to a normal estate administration.

Is a lawyer essential? It depends. If you use a trust, you’ll need a lawyer to set it up. If you rely on a will only, you can buy a cheap form (but that little form may turn out to be extremely expensive if something gets overlooked). If you don’t use a trust and it is time for probate, you may not be required to have a lawyer, but you may quickly wish you had one. A good lawyer can keep you sane and out of trouble.

Bob Mason is owner of Mason Law, PC, a statewide law practice based in Asheboro devoted exclusively to solving problems for elders, the disabled and their families. A Board Certified Specialist in Elder Law, he is a two-term past chair of the Elder Law Section of the North Carolina Bar Association and vice chair of the N.C. Board of Legal Specialization. Contact: Follow Mason Law, PC on Facebook at facebook.com/masonlawpc or at masonlawpc.com.

 

 

Filed Under: Nonlegal Ramblings