[WSBAPT] IRA/community property/probate question

[Dale Young]

No, to tell the honest truth, we haven't solved it yet, so any thoughts would be helpful.
 
Thanks. 





Lowell Dale Young, LLC                From Real Estate to Your Estate
Lowell Dale Young                       Advice to Real Estate Buyers & Sellers
Attorney At Law               Wills, Trusts, Estate Planning
119 First Ave S. #200                        Probate and Avoiding Probate
Seattle, WA 
 
Mailing address: 
P.O. Box 25510
Seattle, WA 98165
Phone: 206-364-0200
Fax: 206-363-0663
Website: www.ldyounglaw.com
 

 
From: john at cairn-law.com
To: wsbapt at lists.wsbarppt.com
Date: Wed, 14 Jan 2015 07:31:30 +0000
Subject: Re: [WSBAPT] IRA/community property/probate question








Dale,

Did you resolve this issue? If not, I have some thoughts (which may or may not be helpful).

Thanks,

John



John Creahan

Cairn Law, PLLC

206-621-5848

Sent from my phone



From:
Dale Young

Sent:
‎1/‎9/‎2015 2:38 PM

To:
wsbapt at LISTS.WSBARPPT.COM

Subject:
[WSBAPT] IRA/community property/probate question









Listmates, here's one to get you reaching for your old copy of  Harry Cross'
 Community Property law review article. 



It's the classic stepmother vs. child from the first marriage. 


 

Client is named as beneficiary of her recently deceased father's IRA account (incidentally she is also named as the PR in his will and is
his sole heir in the will to all of this property).

 

The father's surviving spouse (the client's stepmother) is also claiming the entire IRA account.

 

The IRA was opened after his marriage to the stepmother, but the source of the funds can be traced to reveal it was about 15% separate funds and 85% community funds.  (by the way the funds came from an 40lk rolled over into the IRA, which
 40lk was 85%/15% community vs. separate funds)

 

The IRA beneficiary form says if a community property state is involved then the form naming someone other than surviving spouse as a beneficiary
 has to have been signed by the surviving spouse.   The surviving spouse had refused to sign as of the date of death.


.   

RCW 26.16.030 provides in part:   

   (1) Neither person shall devise or bequeath by will more than one-half of the community property.

 

 (2) Neither person shall give community property without the express or implied consent of the other.

 

   

My view of community property is that each spouse owns half, unless an agreement or court says otherwise, so in a person's will they can leave their 1/2 of community property to whomever
 they choose.

 

 However, an IRA is a nonprobate asset, not normally controlled by a will (unless it is a superwill, which this is not).

 

My conclusion is that the surviving spouse gets 100% of the community property portion of the account because the will has no effect upon the nonprobate asset.    And, the beneficiary designation for the IRA account to
 his daughter cannot control the community property portion of the IRA account.

 

Therefore, the answer on who gets the money is just an accounting exercise to establish (1) what % of the invested funds were separate funds and
 (2) how much the current balance is the earnings and accumulations on the separate portion and how much on the community portion?? 


 

Thus, the lions share of the account goes to the surviving spouse and the much smaller portion goes to the daughter?


 

Am I right so far??

 

Any comments would help.

 

Thanks,


 

Dale Young




Lowell Dale Young, LLC                From Real Estate to Your Estate
Lowell Dale Young                       Advice to Real Estate Buyers & Sellers
Attorney At Law               Wills, Trusts, Estate Planning
119 First Ave S. #200                        Probate and Avoiding Probate
Seattle, WA 
 
Mailing address: 
P.O. Box 25510
Seattle, WA 98165
Phone: 206-364-0200
Fax: 206-363-0663
Website: www.ldyounglaw.com
 


 







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