[WSBAPT] Probate Reality Check

Thu Aug 25 11:52:57 PDT 2016

If there is a potential Medicaid estate recovery claim, there is indeed “anyone out there to complain or object“on sister’s death.  Moreover, if the sister is/has been receiving Medicaid-funded long-term care, a disclaimer by sister, or and AIF, may run afoul of the transfer of assets penalty.  See http://www.hca.wa.gov/free-or-low-cost-health-care/program-administration/transfer-asset#collapse_1_wac1, and the Clarifying Information that follows.

Thomas E. Ashton
Attorney at Law
WSBA # 11587
203 W. Holly St. Suite 301
Bellingham, Washington
98225
Telephone: 360-714-8208 
Fax: 360-714-8217 
E-mail: tashton at tomashtonlaw.com

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Thursday, August 25, 2016 11:12 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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Thomas E. Ashton
Attorney at Law
WSBA #11587
203 W. Holly St., Suite 301
Bellingham, Washington
98225
(360) 714-8208
(360) 714-8217 (fax)]
tashton at tomashtonlaw.com

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