[WSBAPT] Community Challenge to distribution ofnon-probate assets re significant CDs

Mon May 11 08:43:45 PDT 2015

There is a synopsis at https://www.mywsba.org/DisciplineNotice/DisciplineDetail.aspx?dID=436  I don't know if the more detailed relevant documents are available online; this occurred in 2001.  What I remember about some document or opinion (the Disciplinary Board's?) was referring repeatedly to the estate as the attorney's client, despite the fact that Trask v Butler makes it clear that we represent fiduciaries, not trusts and estates, which are not legal entities.

THOMAS M. CULBERTSON  I  Lukins & Annis, PS
717 W. Sprague Ave, Suite 1600, Spokane, WA 99201
(509) 455-9555  I  fax (509) 363-2500  I  tculbertson at lukins.com<mailto:tculbertson at lukins.com>

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Anne Marie Liebhaber
Sent: Friday, May 08, 2015 1:59 PM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] Community Challenge to distribution ofnon-probate assets re significant CDs

Thanks for the advice. It is well taken. Do you have the name/ cite for case you reference?

________________________________
From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Thomas M. Culbertson
Sent: Friday, May 08, 2015 8:44 AM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] Community Challenge to distribution ofnon-probate assets re significant CDs
Not to add to your worries, but several years ago a Spokane atty was disciplined by the WSBA because he represented a client as PR and individually claiming an asset was JTWROS and not a probate asset, and the atty therefore had a conflict of interest. I thought the analysis in the decision was very weak and I still think it was wrongly decided, but my opinion doesn't matter. Many practitioners now say such a client needs two attorneys, one to represent her as PR and another one to represent her as individual claimant. I don't think that solves the problem; as I see it, focusing on an attorney's conflict shifts the focus away from the real conflict of interest, which is the client's potential conflict as fiduciary and individual.
Bottom line is . . . be careful.

THOMAS M. CULBERTSON  I  Lukins & Annis, PS
717 W. Sprague Ave, Suite 1600, Spokane, WA 99201
(509) 455-9555  I  fax (509) 363-2500  I  tculbertson at lukins.com<mailto:tculbertson at lukins.com>
From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Anne Marie Liebhaber
Sent: Thursday, May 07, 2015 10:34 AM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] Community Challenge to distribution of non-probate assets re significant CDs
Thanks for prompt reply. What do you mean by "snt"?
What are your thoughts about son challenging CDs' character outside of probate process, as no probate really is necessary to transfer CDs b/c non-probate assets. Client does not know status of dementia wife/ son relationship re POA or GAL at this point.
________________________________
From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Katharine P. Bauer
Sent: Thursday, May 07, 2015 10:05 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Community Challenge to distribution of non-probate assets re significant CDs

Take the funds but don't spend them. Control is good fit your client.  Investigate what is community or separate, reach agreement as to who gets what; put mom's share in 3rd party snt if possible... Recognize, though, she may be entitled to own some of it outright and may need gal to protect her interests.  Is son POA for her?  Remember, Dad can give his half of CP or all SP where he wants...
On May 7, 2015 9:48 AM, "Anne Marie Liebhaber" <amliebhaber at gmail.com<mailto:amliebhaber at gmail.com>> wrote:
Client is daughter/ beneficiary on five significant CD accounts inherited from her 90 yr old dad who just died. Decedent married second wife 28 years ago but wife is in nursing facility for dementia. Second wife's son wants CDs to go to his mother, claiming CDs are community property despite daughter's beneficiary status and decedent's clear directive in will wherein daughter is PR. No other assets, ALL sold prior to descendent and wife going into nursing facility. Decedent named dementia wife as beneficiary on defined benefit pension of 3K per month.
Client wants to immediately transfer CDs as non-probate asset into her name but fears community property challenge and repercussions. Any guidance appreciated. I am new to this great list. Thanks.
Anne Marie Liebhaber
Attorney at Law

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