‘Dead Hand‘ is a term used to describe clauses found 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 as it is for, well, forever, dead hand clauses have been a part of wills and trusts 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 hit the news when they pop up after a high-profile death. Take Adam Yauch, one of the Beastie Boys, who died in 2012. His will specifically instructed his executor to never allow any of his songs to be used for advertising. Or take Edward Albee, author of the iconic Who's Afraid of Virginia Woolf? 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 there will be no problems.
Not quite; it’s a lot more complicated than that. Executors have a duty to carry out the deceased’s wishes while owing a fiduciary duty to 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. This is, by the way, not taking into consideration what the IRS’ take on the assets in question may be.
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. Other conditions in his will, such as ironclad (at least as interpreted by the estate) conditions for how some plays should be cast and performed have led to lawsuits and embarrassing headlines . . . something surely not in Allbee’s intent.
Dead-hand provisions put a lot of pressure on estates, executors, and trustees. They should only be employed after very careful, very thoughtful planning.