Celebrity Estate Planning - Estate of Warren Burger - Episode 266
Hey there, Legal Tea Listeners! This is your host, Jenny Rozelle. We are here for episode 266 –and we are circling back to an “estate planning of the rich and famous” episode where we chat about celebrities or high profile folks and their estate planning (or lack thereof!). So today is going to be on Warren Burger, who was an attorney by trade, and was on the United States Supreme Court – and actually was the Chief Justice for about seventeen years from 1969 to 1986. As an attorney, one would think he would have a top notch estate plan. Do you think he did? Well, you’ll have to wait a few minutes to get to the answer to that question, but as we always do on these types of episodes, let’s talk a bit about Warren first, then get into what happened with his estate following his death in 1995.
So, let’s talk about Warren Burger. He was born in 1907 in St. Paul, Minnesota, and came from a pretty ordinary, working-class family. He was one of seven children, and his father worked as a railroad inspector and traveling salesman. Warren started working when he was young, delivering newspapers, working on farms, lifeguarding, and doing whatever else he could to make money. He even went to law school at night while working full-time. (Interesting little fun fact because that’s what I did – worked full-time while going to law school!) Anyway, his path to the Supreme Court was not exactly one that was handed to him. He really worked his way there. Interestingly, he had polio as a child and spent about a year at home recovering. During that time, he read extensively, and that apparently helped spark his interest in law and government.
On the personal side, Warren married his high-school sweetheart, Elvera Stromberg, in 1933. They had two children, Wade and Margaret Mary, and were married for more than sixty years. One of the fun little connections in his life is that Harry Blackmun, who would eventually become Warren’s colleague on the Supreme Court, was Warren’s childhood best friend and served as the best man at his wedding. So these two guys literally went from growing up together in Minnesota to serving together on the United States Supreme Court. What a leap!
Professionally, Warren practiced law in Minnesota before moving into government and the federal judiciary. President Eisenhower appointed him to the U.S. Court of Appeals for the D.C. Circuit in 1956, and then, in 1969, President Richard Nixon nominated him to replace Chief Justice Earl Warren. The Senate confirmed him, and Warren became Chief Justice at a pretty turbulent point in American history. His Court dealt with some enormous issues, including abortion, affirmative action, criminal justice, religious freedom, and presidential power. And, of course, Warren presided over the Court during Watergate. In United States v. Nixon, the Court unanimously ordered Nixon to turn over the White House tapes.
Warren retired in 1986 after seventeen years as Chief Justice, but he did not exactly retire from being busy. He continued working on constitutional and judicial issues and chaired the Commission on the Bicentennial of the United States Constitution. He died in Washington, D.C., on June 25, 1995, at the age of 87. His wife, Elvera, had died just the year before in 1994. So, Warren was survived by his two children and two grandchildren.
Now that we talked about him passing away, the million-dollar question: Did Warren Burger, an attorney by trade, have an estate plan? Well… about that. So, this is where Warren’s estate and estate plan story gets really interesting because when I tell you that a former Chief Justice of the United States wrote his own will, you might think, “Okay, surely that’s okay … he was an attorney after all. So, surely that’s okay.” Well...sort of.
Warren absolutely did have an estate plan. He had a will, and according to the attorney who handled his estate, Warren and his wife, Elvera, had also done other planning during their lifetimes, including two trusts and lifetime gifts. So this was not a situation where he completely ignored estate planning. In fact, some of that planning appears to have worked. The planning done during Elvera's lifetime apparently allowed estate taxes to be deferred until Warren's death. And I think that is important to point out because the Warren Burger story is sometimes told as though this guy was a Supreme Court Justice who just completely blew off estate planning and then, on his deathbed, scribbled out a will on the back of a napkin. That is not what happened. There was planning here. There were attorneys involved. There were trusts. There were lifetime gifts. There was actual thought given to what would happen to their property.
But here is where things, let’s call it, went a bit sideways. After Elvera died in 1994, Warren Burger typed his own will. And said will was only 176 words. And honestly, the will is almost comically simple. He said that his debts should be paid, then stipulated what happened to the assets passing through the will. He named his son and a former law clerk as co-executors. That's basically it. No detailed instructions. No specific executor powers. No pour-over provision to a trust. No real discussion of estate-tax planning. Just: pay the bills, split what's left, and here's who's in charge.
Now, I want to pause there for a second because this is one of those things that sounds funny until you're the family member actually trying to administer the estate. Because when we say, “Well, it's just a simple will,” what we really mean is, “The document doesn't have very much in it.” Those are not necessarily the same thing. A short document can still be incredibly effective. But it can also leave a lot of unanswered questions. And that appears to be part of what happened here. His executors apparently had to go back to court to get permission to do things that a more comprehensive will would typically have authorized them to do—like selling real estate. And think about that from the family's perspective. You're already dealing with the death of your dad, or your grandfather, or your spouse. You're trying to figure out the house, the accounts, the bills, the personal property, the taxes—and now your executor has to go back to court because the will didn't give them the authority they need to handle an asset. That's where a seemingly “simple” document can suddenly become very complicated.
And this is where I want to make an important clarification, because you'll see Warren Burger's estate described over and over again as a "$1.8 million estate." That is a little misleading, though. The $1.8 million figure was the value of his probate estate—the assets that actually went through probate and ultimately through his will. It was not necessarily the value of everything Warren and Elvera had accumulated or planned during their lifetimes. In fact, we know they had trusts and had made lifetime gifts, so the $1.8 million figure should not be viewed as the total value of their wealth or their entire estate plan.
And honestly, I think that distinction is really important for our purposes because it gives us another estate-planning lesson. When somebody dies, there isn't necessarily one giant pile of money called “the estate.” There can be assets passing through a will, assets passing through a trust, retirement accounts passing by beneficiary designation, life insurance passing by beneficiary designation, jointly owned property passing to a surviving owner, and other assets that may never touch the probate process at all. So when you hear a headline saying, “Warren Burger had a $1.8 million estate,” you have to ask: What exactly are we talking about? Probate estate? Taxable estate? Gross estate? Trust assets? Total wealth? Those are not necessarily the same number.
There was also a significant tax issue. Contemporary reports estimated that the roughly $1.8 million probate estate could face more than $450,000 in federal and state taxes, court costs, and other expenses. And this is where the famous Warren Burger estate-planning story comes from: the former Chief Justice had written his own will, and his family was potentially paying a pretty significant price for the way that plan was structured. But I want to be a little careful here, because the popular version of this story is sometimes oversimplified. You will see articles say, “Warren Burger did not have a very good estate plan and his terrible will cost his family $450,000.” That's not really the whole story. He DID have other estate planning mechanisms in place, and his estate attorney later explained that there had been trusts and lifetime gifts. There was actually a Washington Post analysis that pushed back on the idea that Warren was a do-it-yourselfer. So the more accurate takeaway isn't, “Never write a short will.” The takeaway is: your will is only one piece of your estate plan, and every piece has to work together.
And I think there's another really interesting lesson hiding in this story: estate planning is not just about what happens to your stuff. It's also about giving the person who's handling your stuff the authority to actually do their job. We spend a lot of time talking about who gets what. But sometimes the more important question is, “Can the person I named as my executor or trustee actually do what I need them to do without having to go back to court?” Can they sell the house? Can they manage investments? Can they deal with a business? Can they make distributions? Can they settle disputes? Can they access accounts? Can they deal with unusual assets? Those provisions may not be exciting to read, but they can be incredibly important when someone actually dies.
And that's actually what I think Warren Burger’s estate story and estate plan can teach the rest of us. First, being booksmart—and being an attorney—does not make you an expert in every area of the law. Warren knew an extraordinary amount about constitutional law. He knew the judicial system better than almost anyone in the country. But estate planning is its own specialty. And honestly, lawyers understand this better than almost anyone: knowing how to practice law does not mean you know every area of law. A criminal defense attorney isn't necessarily the person you want drafting your business succession plan. A family law attorney isn't necessarily the person you want doing your Medicaid planning. And a Supreme Court Justice isn't necessarily the person you want drafting his own estate plan. Second, simplicity is not necessarily the same thing as good planning. There's nothing inherently wrong with a 176-word will. If your estate is simple, maybe your documents could and should be simple. But the question is not, “How short can I make this?” The question is, “Does this actually accomplish what I need it to accomplish?” Because sometimes the most important provisions in an estate plan are the provisions you don't notice until you need them.
Third, don't confuse having documents with having a plan. You can have a will sitting in a safe. You can have a trust sitting in a drawer. You can have beneficiary designations on your retirement accounts. And you can still have a mess. The question is whether all of those pieces actually coordinate. It is a great reminder that throwing together some documents is not the same thing as having a comprehensive estate plan. You've got the documents, but you've also got beneficiary designations, jointly owned property, retirement accounts, real estate, business interests, tax considerations, and - probably most importantly - people. All of those pieces need to work together.
Warren’s story is a pretty good example of what happens when some of the pieces are thoughtfully planned, but the final document does not quite keep up with the rest of the plan. And that's probably the biggest lesson for the rest of us: you do not need to be a Supreme Court Justice or have a large estate for this to matter. You don't even need to be particularly wealthy. Estate planning is not about how much money you have. It is about making sure that, when you're gone, the people you leave behind aren't left trying to figure out what you meant. Because ultimately, that's what we're really trying to accomplish with estate planning. We're trying to take a really difficult moment and make the legal and financial part of that moment as clear and manageable as we possibly can. And Warren gives us a good reminder that even someone who spent his entire career at the very highest levels of the legal profession still had an estate plan that could have been better coordinated.
Alrighty, let’s wrap this one up and shift to a sneak peak at next week. Next week we’re back to a “cautionary tale” episode where we talk about real-life clients, real-life cases that I, or my office, have worked on -or- maybe they are just generally good things to know/be aware of so you don’t slip up and turn into a cautionary tale one day. Next week, we are going to talk about serving as an Executor and/or serving as a Trustee – and what you are agreeing to if you accept serving in that role for someone’s estate plan. It’s a Legal Tea Listener request! So, tune it for that next time, Legal Tea Listeners - Talk to you next week! Take care and be well!
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