[WSBAPT] 11.98.072 Notice

Wed May 20 14:15:41 PDT 2015

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2340718

here’s the link on SSRN.  SSRN is free but I think you have to register.

And it’s on the uw site here:  http://digital.law.washington.edu/dspace-law/bitstream/handle/1773.1/1286/88wlr0813.pdf?sequence=1&isAllowed=y

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Roger Hawkes
Sent: Wednesday, May 20, 2015 1:21 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] 11.98.072 Notice

Karen: is the Law Review article publicly available online?

Roger Hawkes, WSBA # 5173
19909 Ballinger Way NE
Shoreline, WA 98155
www.hawkeslawfirm.com<http://www.hawkeslawfirm.com>
206 367 5000
Fax is 206 367 4005

From: Karen E. Boxx [mailto:kboxx at uw.edu]
Sent: Wednesday, May 20, 2015 12:39 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] 11.98.072 Notice

The duty to keep qualified beneficiaries reasonably informed is the common law duty and is never waivable.  In other words, a secret trust is no trust at all. The 2011 revisions to the trust statutes, based on the UTC, provided a specific duty to inform beneficiaries when a trust was created, and the 2013 amendments made that duty waivable. The waiver of the notice when the trust was created was something requested by practitioners.

It’s true that “keeping beneficiaries reasonably informed” is vague, but there were objections to the 2011 provisions that would have made that more specific and provided safe harbors.  Under the 2013 amendments, it’s up to the trustee (and a court evaluating a trustee’s actions) to interpret what’s necessary for a beneficiary to protect his or her interests.

I hate to sound like a broken record, but there are several pages on the evolution of the current notice requirements in my and Katie Growblewski’s law review article.

karen
From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Jacob Menashe
Sent: Wednesday, May 20, 2015 11:45 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] 11.98.072 Notice

Thank you so much – and especially for including the yellow highlighting. But I’m not even sure if I am reading this right. Is this just another reason, beyond what I asked before, for the proposition that a person can’t set up an irrevocable trust without the trustee having the duty to kept remainder beneficiaries reasonably informed (unless there’s a spouse involved as referred to in subsection 3)? And if that’s the case, what meaning is there in saying the trustor can waive the notice requirements of subsections 2 and 3?

Jacob

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Sam Furgason
Sent: Wednesday, May 20, 2015 11:15 AM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] 11.98.072 Notice

Don’t forget
11.97.010
Power of trustor — Trust provisions control.

The trustor of a trust may by the provisions of the trust relieve the trustee from any or all of the duties, restrictions, and liabilities which would otherwise be imposed by chapters 11.95<http://apps.leg.wa.gov/rcw/default.aspx?cite=11.95>, 11.98<http://apps.leg.wa.gov/rcw/default.aspx?cite=11.98>, 11.100<http://apps.leg.wa.gov/rcw/default.aspx?cite=11.100>, and 11.104A<http://apps.leg.wa.gov/rcw/default.aspx?cite=11.104A> RCW and RCW 11.106.020<http://apps.leg.wa.gov/rcw/default.aspx?cite=11.106.020>, or may alter or deny any or all of the privileges and powers conferred by those provisions; or may add duties, restrictions, liabilities, privileges, or powers to those imposed or granted by those provisions. If any specific provision of those chapters is in conflict with the provisions of a trust, the provisions of the trust control whether or not specific reference is made in the trust to any of those chapters, except as provided in RCW 6.32.250<http://apps.leg.wa.gov/rcw/default.aspx?cite=6.32.250>, 11.96A.190<http://apps.leg.wa.gov/rcw/default.aspx?cite=11.96A.190>, 19.36.020<http://apps.leg.wa.gov/rcw/default.aspx?cite=19.36.020>, 11.98.002<http://apps.leg.wa.gov/rcw/default.aspx?cite=11.98.002>, 11.98.200<http://apps.leg.wa.gov/rcw/default.aspx?cite=11.98.200> through11.98.240<http://apps.leg.wa.gov/rcw/default.aspx?cite=11.98.240> , 11.98.072<http://apps.leg.wa.gov/rcw/default.aspx?cite=11.98.072>(1), 11.95.100<http://apps.leg.wa.gov/rcw/default.aspx?cite=11.95.100> through 11.95.150<http://apps.leg.wa.gov/rcw/default.aspx?cite=11.95.150>, and chapter 11.103<http://apps.leg.wa.gov/rcw/default.aspx?cite=11.103> RCW. In no event may a trustee be relieved of the duty to act in good faith and with honest judgment. Notwithstanding the breadth of discretion granted to a trustee in the terms of the trust, including the use of such terms as "absolute," "sole," or "uncontrolled," the trustee must exercise a discretionary power in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries.

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Jacob Menashe
Sent: Wednesday, May 20, 2015 9:35 AM
To: WSBA Probate & Trust Listserv; 'scairns at hansonbaker.com'
Subject: [WSBAPT] 11.98.072 Notice

RCW 11.98.072, in subsection 1, says that a trustee must keep all qualified beneficiaries (defined by 11.98.002 to now include remainder beneficiaries) “reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests.” Subsections 2 and 3 spell notice that must be given. Subsection 5 says a trustor may waive or modify the notification requirements of subjections 2 and 3.

My query: Can the trustor waive the dictate of subsection 1 – the reasonably informed part? It seems to me that waiving 2 and 3 is fairly meaningless unless it applies to the overall charge in 1. How can you do 1 without providing the notice in 2. As I seem to be reading the statute, what exactly can the trustor waive? Or, in other words, can a person (other than the situation in subsection 3) ever set up an irrevocable trust without the trustee being required to keep the remainder beneficiaries reasonably informed!

Thanks,

Jacob

_______________________
Jacob H. Menashe
Hickman Menashe, PS
4211 Alderwood Mall Blvd., Suite 202
Lynnwood, WA 98036
(425) 744-5658 phone
(425) 744-6078 fax
Satellite Office in Bellevue
www.hickmanmenashe.com

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