[SPAM] RE: [WSBAPT] Calculating distributions under will including assets passed outside of probate
John J. Sullivan
sullaw at comcast.net
Wed Apr 9 18:55:30 PDT 2014
Perhaps what you are looking for is a clause requiring one beneficiary's
share be funded with particular assets (to the extent practicable).
Similar but not same situation. E.g., the assets can't be protected from
creditors.
Regards,
John J. Sullivan
Sent from my iPhone
On Apr 9, 2014, at 5:34 PM, Robert Millsap <rem3 at nwlink.com> wrote:
Why are they non probate assets? Do the documents that created the entity
have a restriction on transfer section? They will still pass by will I
believe or intestate succession. In any event, the will should reference
the document and make it clear that the interest will pass under its terms
I believe. You might need to incorporate it by reference into the will.
If client is married, spouse would have to sign the document that created
the closely held interest to give up any marital rights I believe.
Sent from my iPhone
On Apr 9, 2014, at 4:53 PM, Corey Rogers <corey at findleyrogerslaw.com>
wrote:
Thank you for all the responses. The non-probate assets are an interest
in a closely-held family business that can only pass to other family
members and an investment account associated with the family business that
is similarly restricted. The documents controlling these interests are
already in place, and I'm specifically trying to avoid any language that
would affect the plan already in place there.
Does that change anyone's assessment?
Sincerely,
Corey Rogers (OP)
On Wed, Apr 9, 2014 at 3:49 PM, John J. Sullivan <sullaw at comcast.net>
wrote:
I have drafted set off language when, for whatever reason, a non probate
asset (whether as defined by RCW or not) is to be part of a residuary
beneficiary's share. I always specify the particular asset and provide
that solely for purposes of calculating the residuary shares the value
distributed shall be considered part of the residue and charged to the
distribute. Consider limiting language (in case it exceeds the residuary
share) and require the genetic oath to share information about
distribution with the PR. drafting gets a little more complicated if the
client wants to tax effect it.
Regards,
John J. Sullivan
Sent from my iPhone
On Apr 9, 2014, at 1:24 PM, "ROBERT MILLSAP" <rem3 at nwlink.com> wrote:
Agreed. I do not believe that the OP specified just what nonprobate
assets that he was dealing with thogh. For the OP’s benefit, here is the
statute defining “nonprobate assets” although the eather identifies those
that are excluded under RCW 11.11.
(10) "Nonprobate asset" means those rights and interests of a person
having beneficial ownership of an asset that pass on the person's death
under a written instrument or arrangement other than the person's will.
"Nonprobate asset" includes, but is not limited to, a right or interest
passing under a joint tenancy with right of survivorship, joint bank
account with right of survivorship, payable on death or trust bank
account, transfer on death security or security account, deed or
conveyance if possession has been postponed until the death of the person,
trust of which the person is grantor and that becomes effective or
irrevocable only upon the person's death, community property agreement,
individual retirement account or bond, or note or other contract the
payment or performance of which is affected by the death of the person.
"Nonprobate asset" does not include: A payable-on-death provision of a
life insurance policy, annuity, or other similar contract, or of an
employee benefit plan; a right or interest passing by descent and
distribution under chapter
<http://apps.leg.wa.gov/rcw/default.aspx?cite=11.04> 11.04 RCW; a right or
interest if, before death, the person has irrevocably transferred the
right or interest, the person has waived the power to transfer it or, in
the case of contractual arrangement, the person has waived the unilateral
right to rescind or modify the arrangement; or a right or interest held by
the person solely in a fiduciary capacity. For the definition of
"nonprobate asset" relating to revocation of a provision for a former
spouse upon dissolution of marriage or declaration of invalidity of
marriage, RCW <http://apps.leg.wa.gov/rcw/default.aspx?cite=11.07.010>
11.07.010(5) applies. For the definition of "nonprobate asset" relating to
revocation of a provision for a former spouse upon dissolution of marriage
or declaration of invalidity of marriage, see RCW
<http://apps.leg.wa.gov/rcw/default.aspx?cite=11.07.010> 11.07.010(5). For
the definition of "nonprobate asset" relating to testamentary disposition
of nonprobate assets, see RCW
<http://apps.leg.wa.gov/rcw/default.aspx?cite=11.11.010> 11.11.010(7).
From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of Heather deVrieze
Sent: Wednesday, April 9, 2014 1:00 PM
To: wsbapt at lists.wsbarppt.com
Subject: RE: [SPAM] RE: [WSBAPT] Calculating distributions under will
including assets passed outside of probate
That is really something different, because 11.11 does not address IRAs,
JTWROS or life insurance, so I address any 11.11 issues separately.
Heather
Heather S. de Vrieze
Attorney-at-Law
<image001.jpg>
3909 California Avenue SW
Seattle, WA 98116-3705
(206)938-5500 <tel:%28206%29938-5500>
<mailto:heatherd at westseattlelaw.com> heatherd at westseattlelaw.com
<http://www.westseattlelaw.com/> www.westseattlelaw.com
CONFIDENTIAL & PRIVILEGED. This e-mail message may contain legally
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From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of ROBERT MILLSAP
Sent: Wednesday, April 09, 2014 12:52 PM
To: wsbapt at lists.wsbarppt.com
Subject: [SPAM] RE: [WSBAPT] Calculating distributions under will
including assets passed outside of probate
Should reference to RCW 11.11 be made somewhere in the drafting? I have
always thought that was the main purpose of RCW 11.11 (the super will
provision), to equalize the estate.
From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of Heather deVrieze
Sent: Wednesday, April 9, 2014 12:29 PM
To: wsbapt at lists.wsbarppt.com
Subject: RE: [WSBAPT] Calculating distributions under will including
assets passed outside of probate
Here is one I have used.
At the time of my death I may own certain nonprobate assets such as life
insurance, payable on death assets, retirement accounts, accounts or
property held jointly with right of survivorship which will pass outside
of probate without consideration of the distribution directed my Will. In
the event that such nonprobate assets are distributed differently that the
distribution directed in my Will, I direct that my Personal Representative
use the assets of my probate estate to effectuate distribution in
accordance with the dispositive provisions in my Will to the extent
probate assets are available to do so. Accordingly, a beneficiary
receiving a larger share of nonprobate assets than directed in my will
shall receive a proportionately smaller share of my probate estate. Life
insurance and retirement plan assets specifically and nonprobate assets
generally are not, by this provision, actually to be added to my probate
Estate, and no beneficiary receiving nonprobate assets which exceed their
share of my estate shall be required to reimburse my estate or any other
beneficiary thereof.
Heather
Heather S. de Vrieze
Attorney-at-Law
<image001.jpg>
3909 California Avenue SW
Seattle, WA 98116-3705
(206)938-5500 <tel:%28206%29938-5500>
<mailto:heatherd at westseattlelaw.com> heatherd at westseattlelaw.com
<http://www.westseattlelaw.com/> www.westseattlelaw.com
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From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of Corey Rogers
Sent: Wednesday, April 09, 2014 11:27 AM
To: wsbapt at lists.wsbarppt.com; wsbapt at listserv.nethelps.com
Subject: [WSBAPT] Calculating distributions under will including assets
passed outside of probate
Hi All,
I have a case where there are non-probate assets that must go to a
specific beneficiary (B1) and that beneficiary is also a beneficiary under
the will. Client wants estate assets split 3 ways between B1, B2, and B3,
but wants to take into account the amount B1 receives out of probate when
making the calculation.
I'm wondering if anyone has any sample language they could provide on this
issue? I want to make sure I don't in any way make the non-probate assets
an issue in the probate proceedings for any other reason other than
determining what goes to each beneficiary under the will.
Any guidance?
Thanks in advance.
--
Corey H. Rogers
Attorney at Law
Findley & Rogers, PLLC
9500 Roosevelt Way NE, Ste. 301
Seattle, WA 98115
T: (206) 331-7377 <tel:%28206%29%20331-7377>
F: (206) 486-9930 <tel:%28206%29%20486-9930>
corey at findleyrogerslaw.com
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--
Corey H. Rogers
Attorney at Law
Findley & Rogers, PLLC
9500 Roosevelt Way NE, Ste. 301
Seattle, WA 98115
T: (206) 331-7377
F: (206) 486-9930
corey at findleyrogerslaw.com
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Thank you.
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