Hoeppner, Delmar R.

English

ValpoScholar

Valparaiso University Law Review 
Volume 1 
Number 1 Fall 1966 pp.197-200 
Fall 1966 
Norman F. Dacey: How to Avoid Probate 
Delmar R. Hoeppner 
Follow this and additional works at: https://scholar.valpo.edu/vulr 
 Part of the Law Commons 
Recommended Citation 
Delmar R. Hoeppner, Norman F. Dacey: How to Avoid Probate, 1 Val. U. L. Rev. 197 (1966). 
Available at: https://scholar.valpo.edu/vulr/vol1/iss1/26 
This Book Review is brought to you for free and open 
access by the Valparaiso University Law School at 
ValpoScholar. It has been accepted for inclusion in 
Valparaiso University Law Review by an authorized 
administrator of ValpoScholar. For more information, 
please contact a ValpoScholar staff member at 
scholar@valpo.edu. 
How TO AVOID PROBATE. By Norman F. Dacey. New York: Crown
Publishers, Inc. Pp. 361. $4.95.
The probate system is a conspiracy, says Norman F. Dacey, under
which a helpless, unprotected public is subjected to tribute in the form of
unwarranted cost and delay. The participants in this conspiracy are the
judges, the lawyers, the legislators, the politicians, the newspapers and
the banks. It works something like this:
When you die, a probate judge will appoint two complete
strangers to appraise your estate. The political boss of your
town may have called the judge and said: "You remember old
Joe Green, don't you, over in the 5th district? Joe's out of a
job and has had a lot of hard luck lately. He needs a little
help. Give him an appraisership." Two such "old Joe Greens"
will be appointed as appraisers of your estate.
Dacey continues:
Because to end it would require legislative action-and the state
legislatures of America are controlled by lawyer-members who
have a vested interest in continuing the system exactly as it is.
They see to it that non-lawyer legislators get occasional ap-
praiserships to keep them happy-and silent.
Why don't crusading newspapermen disclose the facts? In
90% of American communities, there is but one newspaper.
A check of the probate court records will disclose that juicy
appraiserships go regularly to two or three key men on the
newspaper. They see to it that nobody bites the hand that is
feeding them.1
Having diagnosed the illness, Dacey now produces his "legal won-
der drug," which turns out to be the well known, but moderately used,
inter-vivos trust. The drug is most effective if self-administered with-
out benefit of counsel. One simply thumbs through the 238 pages of
forms (half of which are duplicates for purposes of making carbon
copies) ; finds the form which suits his need; tears it out along the per-
forated edge; fills in the blanks; crosses out that which is not applicable;
writes in that which would be appropriate (always being sure to initial
the changes unless the alterations become extensive, in which case one
1. DACEY, HOW TO AVOID PROB3ATE 8 (1965).
Hoeppner: Norman F. Dacey: How to Avoid Probate
Produced by The Berkeley Electronic Press, 1966
VALPARAISO UNIVERSITY LAW REVIEW
should retype the form) ; then executes the document in accordance with
instructions contained. Presto! It's done! You have followed Dacey
out of the wilderness into "no probate land."
Mr. Dacey has lost an opportunity to be of service to the Bar and
public. There are abuses in the probate system in some jurisdictions,
and these always should be pointed out. But his blanket indictment of
all persons connected with probate leads one to the conclusion that the
author was not interested in painting a true picture. His book super-
ficially treats a complex area of law. The good points are lost because
of half-truths, unmentioned dangers, and the failure to treat taxation
problems. The book must be condemned heartily, since it is written
without any sense of responsibility to the legal and financial interests of
the user.
Dacey has a form for many kinds of inter-vivos trusts. These in-
clude receptacles for the title to your home, bank accounts, mutual funds,
securities, life insurance, your proprietorship, your personal effects, and
your closely held corporation. He encourages the indiscriminate use of
individual trustees, preferably a relative or friend. Nowhere does he
warn the trustee about the duties of investment and perservation, of ac-
counting to beneficiaries, of filing federal and state tax returns and
penalties for failure to do so, of the dangers of commingling assets, or
of the very real personal liability of a trustee. His forms provide that
the trustee shall act without bond, even though individuals are acting
as trustees. He ignores effective tax planning and lifetime programs of
gifts under proper circumstances.
In chapter fourteen, Dacey invites the reader to challenge the Treas-
ury Department. He mentions a few of the benefits and the ease of
entering into a ten-year Clifford trust. What he says is true, but it is not
one-tenth of what ought to be said. There is no hint that Clifford trusts
have been upset in hundreds of cases; that federal income tax benefits
depend to a great extent upon state law; that an effective tax avoidance
program under a Clifford trust may be effective in one jurisdiction, and
that the same document may not be effective in another jurisdiction; that
you should now be prepared for an audit of your return; that a "Gift Tax
Return" may be required. If Dacey were truly responsive to his reader's
interests, chapter fourteen in its present form would not have been in-
cluded in the book.
In the form "Declaration of Trust" for the placing of one's home
into an inter-vivos trust, Dacey includes not only the home, but in addi-
tion "all furniture, fixtures and real and personal property situated there-
in." Then he would have you, the reader, record this deed. By this deed,
Valparaiso University Law Review, Vol. 1, No. 1 [1966], Art. 26
https://scholar.valpo.edu/vulr/vol1/iss1/26
BOOK REVIEWS
the whole world (particularly the beneficiaries) will know where the
grantor wishes his home to go upon his death, disregarding the family
arguments this grantor may become involved in, in addition to ignoring
the probable arguments after the grantor's death over what constitutes
the "personal property situated therein."
Typical of Dacey's instructions to a form is the following:
Note that the instrument specifies that the named benefi-
ciaries are to receive "in equal shares, or the survivor of
them/per stirpes."
Now, think carefully: If you have named your three
brothers with the understanding that if one brother predeceases
you, his children are to receive his share, cross out "or the sur-
vivor of them" and initial it. If that is not what you want-if
for example, you prefer that the share of your deceased brother
be divided by your two surviving brothers, cross out "per
stirpes" and initial it. Remember, you must cross out "or the
survivor of them" or "per stirpes"-one or the other. (Empha-
sis added.)
Dacey fails to warn these many trustees and beneficiaries about the
obligation to file "Federal Estate Tax Preliminary Notice" and "Federal
Estate Tax Return." But these items should not be mentioned, since
there are penalties involved, and knowledge of this on the part of the
reader may frighten him sufficiently to send him to his attorney for ad-
vice. With respect to inheritance taxes, he says:
Heirs should be instructed to compute carefully any taxes due
(if necessary, retaining the services of an accountant to assist
in such computation) and transmit a check for such taxes to
the appropriate state authority with an appropriate tax return,
including an inventory
In chapter eighteen, the author instructs every car owner to
execute the title to his motor vehicle now, so that when he dies his wife
will merely walk to the registration office with the signed title and trans-
fer it into her name without having to (a) forge his signature, or (b) ap-
ply to the court for letters of administration. This appears to be a clear
invitation to fraud against taxing authorities and creditors. He is not
concerned about the lost or stolen vehicle and the signed title.
The inter-vivos trust is a valuable tool in estate planning. Its use is
often effective in the minimization of costs and taxes. The indiscrimin-
2. Id. at 15.
Hoeppner: Norman F. Dacey: How to Avoid Probate
Produced by The Berkeley Electronic Press, 1966
200 VALPARAISO UNIVERSITY LAW REVIEW
ate use of this vehicle by laymen without professional advice will lead
ultimately to heartbreak and additional costs for many families. It will
take decades to measure the damage this book has done to the public, but,
even then, there will be no adequate way to measure it.
DELMAR R. HOEPPNERt
t Member of the Indiana Bar.
Valparaiso University Law Review, Vol. 1, No. 1 [1966], Art. 26
https://scholar.valpo.edu/vulr/vol1/iss1/26


Norman F. Dacey: How to Avoid Probate

Valparaiso University

Valparaiso University Law Review Volume 1 Number 1 Fall 1966 pp.197-200 Fall 1966 Norman F. Dacey: How to Avoid Probate Delmar R. Hoeppner Follow this and additional works at: https://scholar.valpo.edu/vulr  Part of the Law Commons Recommended Citation Delmar R. Hoeppner, Norman F. Dacey: How to Avoid Probate, 1 Val. U. L. Rev. 197 (1966). Available at: https://scholar.valpo.edu/vulr/vol1/iss1/26 This Book Review is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at scholar@valpo.edu. How TO AVOID PROBATE. By Norman F. Dacey. New York: CrownPublishers, Inc. Pp. 361. $4.95.The probate system is a conspiracy, says Norman F. Dacey, underwhich a helpless, unprotected public is subjected to tribute in the form ofunwarranted cost and delay. The participants in this conspiracy are thejudges, the lawyers, the legislators, the politicians, the newspapers andthe banks. It works something like this:When you die, a probate judge will appoint two completestrangers to appraise your estate. The political boss of yourtown may have called the judge and said: "You remember oldJoe Green, don't you, over in the 5th district? Joe's out of ajob and has had a lot of hard luck lately. He needs a littlehelp. Give him an appraisership." Two such "old Joe Greens"will be appointed as appraisers of your estate.Dacey continues:Because to end it would require legislative action-and the statelegislatures of America are controlled by lawyer-members whohave a vested interest in continuing the system exactly as it is.They see to it that non-lawyer legislators get occasional ap-praiserships to keep them happy-and silent.Why don't crusading newspapermen disclose the facts? In90% of American communities, there is but one newspaper.A check of the probate court records will disclose that juicyappraiserships go regularly to two or three key men on thenewspaper. They see to it that nobody bites the hand that isfeeding them.1Having diagnosed the illness, Dacey now produces his "legal won-der drug," which turns out to be the well known, but moderately used,inter-vivos trust. The drug is most effective if self-administered with-out benefit of counsel. One simply thumbs through the 238 pages offorms (half of which are duplicates for purposes of making carboncopies) ; finds the form which suits his need; tears it out along the per-forated edge; fills in the blanks; crosses out that which is not applicable;writes in that which would be appropriate (always being sure to initialthe changes unless the alterations become extensive, in which case one1. DACEY, HOW TO AVOID PROB3ATE 8 (1965).Hoeppner: Norman F. Dacey: How to Avoid ProbateProduced by The Berkeley Electronic Press, 1966VALPARAISO UNIVERSITY LAW REVIEWshould retype the form) ; then executes the document in accordance withinstructions contained. Presto! It's done! You have followed Daceyout of the wilderness into "no probate land."Mr. Dacey has lost an opportunity to be of service to the Bar andpublic. There are abuses in the probate system in some jurisdictions,and these always should be pointed out. But his blanket indictment ofall persons connected with probate leads one to the conclusion that theauthor was not interested in painting a true picture. His book super-ficially treats a complex area of law. The good points are lost becauseof half-truths, unmentioned dangers, and the failure to treat taxationproblems. The book must be condemned heartily, since it is writtenwithout any sense of responsibility to the legal and financial interests ofthe user.Dacey has a form for many kinds of inter-vivos trusts. These in-clude receptacles for the title to your home, bank accounts, mutual funds,securities, life insurance, your proprietorship, your personal effects, andyour closely held corporation. He encourages the indiscriminate use ofindividual trustees, preferably a relative or friend. Nowhere does hewarn the trustee about the duties of investment and perservation, of ac-counting to beneficiaries, of filing federal and state tax returns andpenalties for failure to do so, of the dangers of commingling assets, orof the very real personal liability of a trustee. His forms provide thatthe trustee shall act without bond, even though individuals are actingas trustees. He ignores effective tax planning and lifetime programs ofgifts under proper circumstances.In chapter fourteen, Dacey invites the reader to challenge the Treas-ury Department. He mentions a few of the benefits and the ease ofentering into a ten-year Clifford trust. What he says is true, but it is notone-tenth of what ought to be said. There is no hint that Clifford trustshave been upset in hundreds of cases; that federal income tax benefitsdepend to a great extent upon state law; that an effective tax avoidanceprogram under a Clifford trust may be effective in one jurisdiction, andthat the same document may not be effective in another jurisdiction; thatyou should now be prepared for an audit of your return; that a "Gift TaxReturn" may be required. If Dacey were truly responsive to his reader'sinterests, chapter fourteen in its present form would not have been in-cluded in the book.In the form "Declaration of Trust" for the placing of one's homeinto an inter-vivos trust, Dacey includes not only the home, but in addi-tion "all furniture, fixtures and real and personal property situated there-in." Then he would have you, the reader, record this deed. By this deed,Valparaiso University Law Review, Vol. 1, No. 1 [1966], Art. 26https://scholar.valpo.edu/vulr/vol1/iss1/26BOOK REVIEWSthe whole world (particularly the beneficiaries) will know where thegrantor wishes his home to go upon his death, disregarding the familyarguments this grantor may become involved in, in addition to ignoringthe probable arguments after the grantor's death over what constitutesthe "personal property situated therein."Typical of Dacey's instructions to a form is the following:Note that the instrument specifies that the named benefi-ciaries are to receive "in equal shares, or the survivor ofthem/per stirpes."Now, think carefully: If you have named your threebrothers with the understanding that if one brother predeceasesyou, his children are to receive his share, cross out "or the sur-vivor of them" and initial it. If that is not what you want-iffor example, you prefer that the share of your deceased brotherbe divided by your two surviving brothers, cross out "perstirpes" and initial it. Remember, you must cross out "or thesurvivor of them" or "per stirpes"-one or the other. (Empha-sis added.)Dacey fails to warn these many trustees and beneficiaries about theobligation to file "Federal Estate Tax Preliminary Notice" and "FederalEstate Tax Return." But these items should not be mentioned, sincethere are penalties involved, and knowledge of this on the part of thereader may frighten him sufficiently to send him to his attorney for ad-vice. With respect to inheritance taxes, he says:Heirs should be instructed to compute carefully any taxes due(if necessary, retaining the services of an accountant to assistin such computation) and transmit a check for such taxes tothe appropriate state authority with an appropriate tax return,including an inventoryIn chapter eighteen, the author instructs every car owner toexecute the title to his motor vehicle now, so that when he dies his wifewill merely walk to the registration office with the signed title and trans-fer it into her name without having to (a) forge his signature, or (b) ap-ply to the court for letters of administration. This appears to be a clearinvitation to fraud against taxing authorities and creditors. He is notconcerned about the lost or stolen vehicle and the signed title.The inter-vivos trust is a valuable tool in estate planning. Its use isoften effective in the minimization of costs and taxes. The indiscrimin-2. Id. at 15.Hoeppner: Norman F. Dacey: How to Avoid ProbateProduced by The Berkeley Electronic Press, 1966200 VALPARAISO UNIVERSITY LAW REVIEWate use of this vehicle by laymen without professional advice will leadultimately to heartbreak and additional costs for many families. It willtake decades to measure the damage this book has done to the public, but,even then, there will be no adequate way to measure it.DELMAR R. HOEPPNERtt Member of the Indiana Bar.Valparaiso University Law Review, Vol. 1, No. 1 [1966], Art. 26https://scholar.valpo.edu/vulr/vol1/iss1/26

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