The novelty Christmas song, ” Grandma Got Run Over by a Reindeer,” was written by Randy Brooks and originally recorded by the husband-and-wife duo of Elmo and Patsy in 1979. According to the song, the family matriarch gets intoxicated from imbibing too much eggnog. Then, having forgotten to take her medication and ignoring warnings from her family, staggers outside into a snowstorm. On her way, she is trampled by Santa Claus and his reindeer. At the next day’s Christmas gathering: “all the family’s dressed in black” while the widower acts as if nothing’s happened, drinks beer, watches football and plays “cards with cousin Mel.”The song ends as a cautionary tale that Santa, “a man who drives a sleigh and plays with elves,” is unfit to carry a driver’s license, and that the listener should beware. In short, Santa is a menace to society.
But, since I’m an Estate Planning lawyer, I can’t just leave it there. I wonder about Grandma’s estate. (Yes, I do that sort of thing.)
How about this? Let’s say Grandma survives the attack but is still seriously injured. She is unconscious, lying there like a rug. The doctor declares her legally incompetent. (Truly, she might have been so before the calamity, given her desire to wander drunk out into the snow storm.) What happens to Grandma and her stuff depends on what estate planning Grandma and Grandpa have put into place. (This makes for a great parlor game.)
First off, assume that, like two out of three of us, Grandma and Grandpa have NOT done proper estate planning. What’s the likelihood that an elderly lady doing multiple shots of eggnog had the foresight to engage in estate planning? When Grandma is admitted to the hospital, since she does not have an Advance Directive for Health Care (she really didn’t anticipate the reindeer attack), she has no control over who will make health care decisions for her now that she can’t communicate her wishes. (” Stomp three times if you want a ventilator.”) Under Georgia’s Medical Consent Law, the next of kin may consent if the patient is unable to do so. The spouse is the first option for a patient who is married. Uh, oh! It’s all up to Grandpa. He’ll get around to deciding after the next round of cards.
Grandma makes it, but her care is getting expensive. She and Grandpa have maintained separate bank accounts all these years. Grandma’s pension is in her account and all the household bills are in her name. (Grandpa was a crafty old bird that way.) Grandpa will have to go through a lengthy, public and costly court process to be appointed as Grandma’s guardian and conservator to access Grandma’s pension to pay hospital and household expenses. He will likely have to post a bond to ensure he doesn’t mishandle Grandma’s money. This process takes several weeks and costs several thousand dollars. Given Grandpa’s greater interest in drinking beer and playing cards, it better be a hefty bond.
Now, we are several months down the road from the horrific attack. Sadly, Grandma does not make it, and finally, ” all the family’s dressed in black.” So what happens to Grandma’s property?
Unfortunately, Grandma did not have a Last Will and Testament. Why are you not surprised? The Georgia laws of intestacy provide a default or “do nothing” plan. It is a one-size fits all Will (kind of like Grandpa’s overalls) that says Grandma’s estate will be shared between Grandpa and her unnamed children. Let’s assume Grandma and Grandpa had two children, Elmo and Patsy. Grandpa receives a share as great as each child (but no less than one third) and Elmo and Patsy also receive one-third each. Don’t worry about old Cousin Mel getting anything: therefore he would become an heir, Grandma’s spouse, children, and all grandchildren, parents, and siblings would have had to have predeceased her before Mel, a cousin, gets anything. Maybe Mel gets the playing cards.
Like the guardianship and conservatorship, this is handled in the probate court, and is likewise a public, time-consuming and costly process. Not the brightest of options, but not an unlikely result given this unfortunate family.
Let’s go to an alternative universe now. This time, because she was forward thinking, Grandma had an Advance Directive for Health Care naming Sister Sally as her health care an agent. Since Grandma is unable to communicate her wishes, Sally can make her health care decisions for her. She can admit Grandma to the hospital and request, consent to treatment or with raw treatment. (And, unlike Grandpa, Sister Sally won’t hesitate!)
Grandma also had a durable power of attorney and a revocable living trust, so when she became incapacitated, Sister Sally was able to immediately act on her behalf to handle her finances as her agent or ” attorney in fact.” This satisfied Grandpa, too. Instead of him having to file for guardianship and conservatorship, he kept his scheduled card games with the guy. Sally became the successor Trustee and gained access to Grandma’s money with minimal expense and it was all handled privately. No one was the wiser.
Grandma’s living trust was fully funded (meaning the title of all of her accounts and property were transferred to it), so when she ultimately passed on, her family did not have to go through the several months of delays and costs of a public probate process (several thousand dollars more), but instead was able to have immediate access to the money and properly. Sally took a modest amount allotted by Grandma for her efforts and transferred funds to Grandpa as he needed it. And trust me, until he met his untimely demise, he needed it!
Poor Grandpa. Stumbling home on Easter morning after a late night with the boys, he was startled by the Easter Bunny slipping out of Grandpa’s house. In his haste to shoot the bunny who he thought was Grandma’s paramour (he forgot that Grandma had died) he pulled the trigger before clearing the muzzle away from himself. No one ever knew what happened. They assumed Grandpa just couldn’t go on without Grandma. Grandma’s trust was dissolved and the proceeds were distributed unhindered to her children as she had directed.
So the next Christmas, the goose was on the table, as was the pudding made of fig. As the blue and silver candle that matched the hair in Grandma’s wig: flickered, everyone remembered Grandma fondly, as they all waited, except for Grandpa, for the jury award in grandma’s lawsuit against Santa.
And they all lived happily ever after.