Dead Hand, Estates, and Probate

‘Dead Hand‘ is not the title of one of next season’s Walking Dead episodes. It is a term used to describe certain clauses in some wills and trusts. From the Beastie Boys to the great playwrights Eugene O’Neill and Edward Albee, to Franz Kafka, to parents worried about the spending habits of their adult children, to homeowners wanting to preserve their home for, well, forever, exactly as it was during their lifetime, dead hand clauses have been a part of wills and trust since there have been wills and trusts.

It’s pretty easy to define – a dead hand clause is just what it sounds like, it’s an attempt by the deceased to retain some measure of control over some kind of asset after death. As in, “I leave the house to my nephew as long as he never sells it to the neighbor who always wanted to build a parking lot on it.”

Dead Hand clauses have been in the news lately because of two high-profile deaths. The first, Adam Yauch, one of the Beastie Boys, died in 2012. His will specifically instructed his executor to never allow any of his songs to be used for advertising. The second, Edward Albee, author of the iconic Who’s Afraid of Virginia Wolf, died last September. His will instructed his executors – two lifelong friends – to destroy “any incomplete manuscripts” he left behind.

Simple, right? Just do what the deceased wanted and no problems.

Not quite, it’s a lot more complicated than that. Executors, as we’ve seen over the last year of blog posts, have a duty to the deceased’s wishes, the estate, and the beneficiaries. And that’s a problem.

The Beastie Boys’ music, obviously, makes Adam Yarch’s estate a lot of money. Edward Albee’s papers are very valuable. In both cases, following the deceased’s ‘beyond the grave instructions’ will diminish the value of the available assets to the beneficiaries. Significantly.

It’s a tough position for executors to be in. Albee’s executors have it even worse than Yarch’s, by the way. Nowhere in Albee’s will does he define what an ‘unfinished manuscript’ is.

Being an executor is hard enough without dead hand instructions.