The Virtues of Estate Planning & Estate Planners Part 3 of 3: Essential Virtues of the Estate Planning Professional

“The Virtues of Estate Planning and Estate Planners: Part 3 of 3,” that’s the subject of today’s ACTEC Trust and Estate Talk.

The Virtues of Estate Planning and Estate Planners is a three-part special:

• Overview
• Part 1: The Virtues of Estate Planning and Estate Planners: Estate Planning- A Job or a Calling? 
• Part 2: The Virtues of Estate Planning and Estate Planners: Estate Planning’s Role in Civilization 
• Part 3: The Virtues of Estate Planning and Estate Planners: Essential Virtues of the Estate Planning Professional (this podcast)

Transcript/Show Notes

This is Kurt Sommer, an ACTEC Fellow from Santa Fe, New Mexico. Welcome to a special lecture featuring ACTEC Fellow Turney Berry from Louisville, Kentucky. He wraps up his Joseph Trachtman lecture with diversity and how ACTEC has evolved since he became a Fellow.

Now, we continue with “The Virtues of Estate Planning and Estate Planners” lecture.

The Virtue of Being Wrong

Turney Berry: The most important virtue, I think, is the importance of being wrong, not toleration of being people who are wrong. It is important to be wrong. If you want to be right all the time, hang a sandwich board around your neck that says, “The sun rises in the east and sets in the west.” You’ll never be wrong. You won’t be of any help to anybody, but you’ll never be wrong.

It notes the classic, absolute classic newlywed game. In your neighborhood, from what direction does the sun rise? Not a single participant said, “east”. True story. I always thought I imagined that, but, oh, no, it’s on the internet. I saw it live. Very bizarre, very confusing for a young person trying to understand the world who didn’t understand what they were doing. This would be a big thing, right? I’m never going to be wrong. I’m just going to say things that everybody knows.

There’s a famous law professor who has told me many times when he lectures, he will never be wrong. If somebody asks him something he’s not 100% sure about, he just won’t talk about it, won’t talk about it at all. Can’t stand being wrong. I say, “Well, you know, that’s kind of surprising. I’m wrong pretty much every time I speak about something.” That’s okay, because I think that it’s helping me, somebody’s correcting me, and maybe I’m giving crazy ideas to other people who can help in that way.

The College is pretty good about that, I think. I think there are two aspects that are very important if we’re going to cultivate a culture of “It is okay- it’s good- to be wrong.” The first is the people who are wrong have to stand up and realize that it’s okay to be wrong. The great physicist Richard Feynman, Nobel Prize winner, wrote a whole book. What Do You Care What Other People Think?

Richard Feynman was the guy. You might remember him when the challenger exploded, he was on the committee, and so they’re sitting in a big room, he’s the only scientist. They’re passing around this little piece of plastic that may have been the problem was it too cold? Was it too stiff? It comes around to him. He sticks it in his glass of ice water, leaves it for a few seconds, pulls it out. Lo and behold, it doesn’t bend like it did. Taps on the microphone and says, “Mr. Chairman, I think we have the answer here. These get stiff when they’re cold. He was a smart guy.” What do you care what other people think? You might say, well, that’s kind of highbrow for us all.

Well, how about another doctor who says that people say she doesn’t have a thought in her head. People say that she can bring people home, but she can’t make them stay. She says that haters are going to hate. And what do you need to do about that? You need to “shake it off.” That’s what she says. I think that’s good advice. I think that’s very good advice. That’s what we need to do. What do we care about somebody telling you that you’re wrong? Telling you don’t owe something?

Now what’s the other side of that? What do we do when we see somebody who’s wrong? When we see somebody who doesn’t know something? Well, what you do is you tell them, right? We had a paralegal once who didn’t know about fractions. Nobody had ever told her. She had a chart of anything, odd fractions. One third, .1333. One quarter, 0.25. Occasionally, you’d get something not on the chart, 3/17 or something like that. Nobody had ever told her. This is the magic. You know how you do that? Take your calculator, push in three. Hit the slash button. Hit 17. It works. Remember the great science fiction writer Arthur Clark, “any technology that is sufficiently advanced appears to be magic.” To her, this was magic. She just didn’t know.

First time I gave a talk in the community, when I was in Louisville, I had a friend. We were doing law school for non-lawyers in impoverished areas. I was doing estate planning. Inheritance, really. And some nice lady stands up and she has a real question. It’s about the Kentucky Slayer Statute. I can tell you a lot about 2036(c) GRATs. She didn’t need to know much about that. She needed to know about the Kentucky Slayer Statute. I didn’t know any of the specifics, I was of no use to her at all. This is an important kind of thing. If you don’t know, you got to tell people.

We’re pretty good about that in the College, we’re pretty good about that indeed. You’ll see some little stories in there, Susan Gary is a master about that. There’s a great story. Jerry McCoy, who died about a year ago. Jerry McCoy had a lot of cool characteristics, one of them was that I would come up year after year in Charitable Committee meetings with some sort of convoluted idea. He would kind of look at it and cock his head, and then he would say, “Huh? That’s kind of Mickey Mouse, isn’t it?” I’ve spent my whole life trying to de-Mickey that or de-mouse it or something. It’s a funny deal. But he was good. They were all good. Lots and lots of people are good at that. And I think we need to emulate that.

The Virtue of Candor

Another virtue that I think we need to emulate is candor. We have a lot of snark in the College, I’ll just say that. I’m not going to call people out for that, I could. Y’all could probably call me out for that. It’s bad. It’s bad. We are clever people, right? We’re lawyers. We value wordplay. We value being cynical. Okay, that’s fine among friends, that can spread. And there are folks in the College that you can say certain things about, you can make certain jokes about, and you will get total laughter regardless of where you are. It’s bad, in my judgment.

The best way to do that, in my opinion, is to say, would you say whatever you just said to the face of the person if they were sitting right here? Most of the time, the answer is no. Well, then why don’t we just skip it and move along? Maybe if you take a walk with a friend, you all can chortle together. But it’s a bad habit to get into, it pulls the College apart, or it pulls us all apart, it seems to me.

The Virtue of Politeness

Politeness, I have to tell you that probably the saddest day I ever spent in the College was in the recognition that we had to have a Code of Conduct. Not objecting to the Code of Conduct, but that doesn’t make me a happy camper that we have to have a Code of Conduct. It seems to me that we can understand how to be polite to one another, and we ought to be able to understand that. We have to be reminded about that all the time because things change.

I was doing a webinar a few years ago and I gave the same example that I’d given a bajillion times, We were talking about families and family succession and for years in my office, I would say, talking to a family, if everybody in the family was doing well, all the children all the grandchildren were doing well, I would say, “So, there are no black sheep in your family. Heck, there don’t even seem to be any light brown sheep in your family.” Everybody would laugh. It’s all good.

I do a webinar, nice lady sends a note in and says, “I get your point. I don’t think you should say that.” I say, “Well, that’s right. You’re totally right. I shouldn’t say that. Thank you for telling me that I shouldn’t say that.” I don’t have a great replacement but that’s okay because I shouldn’t say that. That’s likely to offend people. It’s not my purpose to wander through life offending people, at least not unnecessarily, it seems to me.

The Virtue of Interest

I think other virtues that we might think about cultivating that bring people together is interest in the College. I talk a little bit about my happiness in discovering that there are a lot of other opera lovers in the College. I was thrilled to get a couple of notes that there are people who know Alasdair MacIntyre in the College, this is the good deal.

We’ve talked in Long Range Planning (Committee) about efforts to bring out all the connections that people had. You know, I just like to pick on Missouri, right in the middle of the country. I mean, we have David English. Did you know he has a pipe organ in his basement? You probably know that Larry Katzenstein has perfect pitch. These are interesting kinds of things. I mean, Clary Redd is not only a hockey fan, but he also is a champion tuck pointer. Did you know that? I mean, that’s an interesting combination. Face painter, he does all kinds of interesting things. Everybody here does all kinds of interesting things. And I know this because every time I sit at dinner or on a bus with an ACTEC Fellow, I learn something interesting that they do. The more we cultivate and understand that the happier we are, in my judgment, together. That keeps us together, it seems to me.

We have a New Fellows Committee now. It does great work. I understand everybody loves it. Didn’t have one when I joined the College. We didn’t need one when I joined the College. We only need one because people like me in my generation didn’t do what was done so often for us. I like to say I didn’t need a New Fellows Committee because I had an Ed- I had Ed Beckwith. I’d known Ed through some charitable work beforehand, and I joined the College and Ed Beckwith, when I joined, took me by the hand and led me around and introduced me to people and said, “Hey, here are the charitable people. You should come here, you should be on this committee, and then you should go do this.” And then after a very short period of time, he was giving a talk on charitable something or the other, and he said, “Here, come help me with this talk.” By help me, he meant co-present with me. Think I’d been in the College a year. We all need to do that, we all can do that, and those are great examples.

So, now what we do is we have structure that replaces, in many instances, individual initiative. That’s not good. We needed to augment individual initiative. It’s a terrible thing that we all do. We have a committee that does it we have a group that does it, therefore, I don’t have to do it. I will go, and I will enjoy the same group of people that I’ve enjoyed forever and ever. Not good, it seems to me.

Grappling With Diversity

Kendra and I have spent a lot of time in Louisville, involved with a lot of different arts groups, and in particular, involved in a very interesting interfaith group. And in doing that, we have seen and have grappled with lots of different kinds of diversity. You haven’t lived until you’ve had to have a diverse program covering all the faith traditions of the world. That’s a lot of people to put on a program all at once, because not only aren’t all the Christians on the same page, but fascinatingly enough, all the Buddhists aren’t on the same page, either. You can’t just have one and have them all there. You have to do diversity in a thematic way so that you can look at a series of programs over a number of years and say, “Oh, yeah, our programming is diverse, not on a day-to-day basis, but on a year-to-year basis.”

If you look out at these programs, you will see topics that you will find interesting. You will see topics that you will help, you will see speakers that are like you, you will see points of view that are like you, and you will see points of view that are close, that maybe you can relate to, and that will help you see these other points of view. And to me, that is the way we try to organize our diversity. I think. I think that’s a help, and you can just see what you think.

Expanding on the Work of ACTEC Committees

I’m inquisitive, so you’ll see lots of programs. They go on and on about all kinds of things. And you’ll say, “Who wants to have a program about that?” Well, I don’t know. I would like to have a program about that if nobody else does. The committee work- I love the committees, I should say one of the reasons I love the committees is because we have the great honor and privilege of having Donna Braman (ACTEC staff) assigned to help with the committees. And she’s superb. And I know she knows she’s superb. And we try to tell her she’s superb.

Being a committee chair is my favorite job by far, in the College. It’s great fun. I have a suggestion about the committees you could think about. It might just make a mess. But we’re on the committees, and we stay on those committees, and we die on those committees for people. What if you had a mandatory rotation? So, I’ve been on the Charitable Committee for, I don’t know, 25 years, some period of time. Brother Steve down here, he’s been on the Charitable Committee for 25 years. What if the rule was, you could be on the committee for 10 years, 7 years, I don’t know, pick a number, and then you had to be off that committee? You could be on some other committee for a few years.

So, I’m on the Charitable Committee, and then I have to get off. And I say, “Okay, I’ll go beyond the Domestic Relations Committee and see how that works.” Maybe I’ll love it over there. Maybe I’ll stay over there and then I’ll come back. Who knows? Would that be helpful? Would it just make a mess? Would we meet more Fellows? Would we have more energy? Because I have a great domestic relations idea that I’ve always wanted to try now I’m on that committee. So, I will float it out and I will do that, or not. I don’t know the answer to that. Is it worth experimenting with? I don’t know, but I think some of those things are worth thinking about.

You’ll see a lot of suggestions in here about other kinds of work that we might be able to do in the law reform area; I’ll just mention two. The ACTEC Commentaries are fabulous. We know that. What if we did the equivalent of amnesty type of things? Or treasury commentary type of things in ethics? What if we conjured up draft ethics opinions, sent them out to the Fellows, and said, “Hey, why don’t you recommend this to your state ethics committee?” Would that be helpful? Would that generate some uniformity across the country? I don’t know.

In the law reform area, you just have to recognize what we all know. Most people can’t afford our services. We’re going to have to do something different than that. You may say, “Well, IT is going to solve the problem. AI is going to solve the problem.” I understand that, I don’t think so. I’ll just tell you I’m a skeptic. I know lots of people love technology. It’s bright, shiny, new, makes them feel hip and cool, makes them relate to their children or grandchildren. Not me. I’m sitting in my rocking chair listening to it as time goes by, I just don’t think that’s going to help you.

Novel Estate Planning Ideals

You’ll see something in South Carolina. Quoted in the materials, South Carolina Supreme Court last month said that the NAACP can run a program on a three-year basis that will train and allow non-lawyers to handle eviction cases. Represent people in evictions. They have a long discussion about this is close to the practice of law, but we’re going to allow it. There’s a real problem. Is that a model? Is that something we should think about? Evictions? But we know most wealth passes through beneficiary designations and in other forms: joint ownership, transfer on death, deeds, all these fancy things and we know it gets screwed up a lot.

Could we do work that would say we are going to encourage, maybe help train, maybe encourage colleges or technical colleges or others to train essentially estate planning assistants? We have physician assistants who can help with neurosurgery. I realize employee benefit forms are complicated, I don’t think they’re as complicated as neurosurgery, Maybe they are. I’m not a neurosurgeon but I don’t think they are. I think we might be able to train and encourage states to generate a whole cadre of people who could help with this kind of thing. Maybe, maybe not.

Two other things that I’ll just say and then I will retire from the stage. We have wonderful sponsors, I think Deb told me we have 47 sponsors this year. That’s amazing. Staff does a fabulous job; leadership does a fabulous job.

I was fairly close to the publishers of the local newspaper in Louisville, Kentucky. And newspapers worried for a long time about their problems. They needed to get better. What they didn’t worry about was the fact that they were going to be obsolete. What they didn’t worry about was the fact that they were aggregators of folks to acquire information and that the purpose of their aggregation was going to disappear.

We are aggregators for the sponsors. The sponsors pay to appear here, so they don’t have to come around and take Margaret to lunch, take Meg to lunch, take Melissa to lunch and go down the path. They can get us all here. ACTEC is an aggregator. Will we always be an aggregator? Will somebody come along and disrupt that? I don’t know, but I worry about that and I hope somebody somewhere is thinking about that as a possibility because we saw it with newspapers. So, the virtues that I have talked about very briefly here, I think we’re embodied very well.

The Virtues of Fellows

Two folks that you all know that I was privileged to have as friends that died in the last year. I’m tempted to say that we lost them in the last year, but we’re death lawyers, death is good. They died in the last year. I’m speaking of course, of Mal Moore and Danny Markstein. Mal Moore was an interesting fellow. When I was a young lawyer, I went to the Heckerling Institute a lot, and I didn’t think much of Mal. I told Mal what I’m about to say here. I saw Mal, and Mal often talked about disclaimers, and I didn’t think he carried his weight on the Q&A panel. Didn’t think much Mal. A few years later I ended up using him as an expert witness. We did, and Mal was a fabulous expert witness. It turned out he was a fabulous lawyer who knew. Everybody else knew I didn’t know.

And then I discovered, even more amazingly, that honest to goodness, all the institutions- study groups, ACTEC, RPTE, Heckerling- all the institutions that make this profession one that I am so happy to be a tiny part of, Mal founded, nurtured, shared, transmitted, he did it all. In addition, of course, to being obviously smart, literate, helpful kind of Fellow. Mal Moore was great in all of those kinds of ways. He’s the person about whom I’ve been as wrong as anything else in my whole life. When he retired from the JEB (Joint Editorial Board for Uniform Trust and Estate), I got to say a few things and I got to tell him that I’m happy. I’m happy I did.

Danny Markstein, of course, was a great ACTEC President and a great ACTEC Fellow. He knew, I suspect, all of you, except the folks who’ve just joined. He knew everybody in ACTEC. He shook everybody’s hand, patted everybody on the back, had a grin for everybody, a joke for everybody, a help for everybody. But Danny Markstein, you can never forget, was a deep, deep, deep man of substance. He won a Bronze Star, and a Purple Heart, I don’t know what you have to do to be awarded a Bronze Star and a Purple Heart, but I have a sense that it was serious, serious business.

He practiced law with his daddy. Wouldn’t change firms until they would take daddy, too. Serious business- husband, father, ACTEC President, law firm member- all serious business. The reason that he had the grin, the reason he had the handshake, the reason he patted us all on the back, was because he knew that together we can handle serious business, and alone, we can’t handle serious business. That’s the message, it seems to me that we are trying to do here. Lots of us, lots of our clients, have crises of confidence. We don’t believe, lots of my clients, that they deserve the wealth they have.

They either made it themselves and they have psychological damage from that because of all the relationships they hurt, or they inherited it and they wonder why. What they forget is it’s not just them who have wealth they don’t deserve it’s everybody else. None of us deserve what we have, we have to earn what we have through service, it seems to me.

In Louisville, Kentucky, we often quote Muhammad Ali, who said, “That service is the rent you pay for your room here on earth.” You might like Muhammad Ali, you might not.

I like to quote QE2 (Queen Elizabeth II), and I quote her when she was 21 years old and said, “Hey, I’m going to serve ‘til I die.” She did, till age 96. We often worry about retirement. When are we going to retire? Ninety-six seems like a pretty good age. I’m happy. I’m happy with that. And, Kurt, if we only retire when we’re 96, you won’t have a problem with the number of Fellows in the College. We’re going to have too many pretty soon. Thank you all very much.

Thank you all very much.

Kurt Sommer: Thank you, Turney, for sharing your insights and passion for the trust and estate field. We are indebted to you for sharing your wisdom with all of us. I’m sure you will agree with me that we are fortunate to have Turney Berry deliver the Annual Joesph Trachtman.

Additional Trachtman Lectures in the ACTEC Trust and Estate Talk series:

• The Calling of the Counselor in Counseling Families by Ronald D. Aucutt (June 2022)
• Truth, Transparency, and the Right of Privacy by Duncan Osborne (Nov 2020)
• Balancing Independence and Vulnerability of Older Adults by Professor Mary Radford (Aug 2019)
• Estate Planning and Trust Management for a Brave New World by Hugh Magill (Nov 2018)

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