[WSBAPT] Probate Reality Check

Thu Aug 25 11:46:29 PDT 2016

I have a vague recollection that if sister is on Medicaid, then DSHS
prohibits a disclaimer.  
I see a 2007 note that says DSHS considers qualified disclaimers to be
transfers subject to penalty and cites http://www1.dhsh.wa.gov/esa/eazmanual

Don't know if that will work.

I assume the sister has outlived whatever survivorship clause is in the
mother's will.  So her interest has vested.

Does the POA from sister to brother specifically authorize disclaimers??  As
I recall it has to be specifically authorized under the old POA statute and
the new POA statute is not effective yet.
If it does, you can certainly argue that sister foresaw the conflict of
interest and approved it.    

Jackie Cyphers
Jeannette A. Cyphers, Attorney at Law
P. O. Box 908   
Edmonds, WA 98020-0908
425-776-5887
fax 425-640-0814
jacyphers at gmail.com

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-------Original Message-------

From: Paul Neumiller
Date: 8/25/2016 11:17:04 AM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] Probate Reality Check

Yeah, I’m been thinking about that but I’m not sure it passes the “smell
test.”  Sister is mentally disabled but Son, her brother, has her POA. 
Mom’s Will says Son gets everything if Sister predeceases Mom and Sister’s
Will gives everything to Son.  So, on one hand, Son is signing, as a
fiduciary, a disclaimer which benefits him and creates a conflict of
interest.  On the other hand, who cares because he gets everything anyway
and there is no one around to complain/object because Sister never married
and has no children.  Under Sister’s POA, Son has already started to pay her
debts and bills.  Son plans on paying for all of Sister’s medical debts so I
don’t think we will have any abandoned creditors.

I wasn’t able to find any cases discussing IRS disclaimers and a POA’s
conflict of interest.  In the past, I got a self-serving disclaimer by a
guardian approved by the court but that was in the context of an existing
probate and a separate guardianship.  I could open this probate and petition
the court for approval of the disclaimer but that would entail getting a
guardian ad litum for Sister, and that’s an expense we are trying to avoid. 

Any thoughts out there regarding Son’s exposure for signing the
self-interested disclaimer when he is to receive everything anyway and there
isn’t anyone out there to complain or object???

(Apparently there is interest in this topic because I have received multiple
emails off-list from attorneys in similar situations asking for the results
of my research.) 

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists
wsbarppt.com] On Behalf Of David Faber
Sent: Thursday, August 25, 2016 10:32 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Probate Reality Check

Can sister disclaim her interest in mom's estate?

Best,
David J. Faber
Faber Feinson PLLC
210 Polk Street, Suite 1
Port Townsend, WA 98368
(360) 379-4110

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On Tue, Aug 23, 2016 at 3:39 PM, Paul Neumiller <pneumiller at hotmail.com>
wrote:
I represent Son.  Mom dies.  Sister, who gets 50% of Mom’s estate (Son get
the other 50%), is dying (in hospice care) and incapacitated.  No one knows
when she will pass and family thought Sister would have died before Mom died
  Sister is insolvent (and has no heirs) except for inheritance and her Will
gives everything to Son, her brother.  Son wants to open Mom’s probate in
order to sell Mom’s house quickly.  But, if we open probate, then need to
appoint a guardian-ad litem for incapacitated Sister.  Any creative
solutions out there?  To complicate the issue, there may be Medicaid
collections issues out there for Sister when she passes.

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