[WSBAPT] Probate Reality Check

Thu Aug 25 12:04:58 PDT 2016

whether the DPA allows disclaimers or not, DSHS will consider the disclaimer a gift and create a period of ineligibility.  

If Mom’s will had a trust that could be “reformed” to a third party SNT through the probate court with notice of hearing to DSHS (there is a case the name of which I can’t recall that says this procedure will work) that might save it... otherwise the 50% would need to be used for private pay.

From: J A Cyphers 
Sent: Thursday, August 25, 2016 11:46 AM
To: Probate List Serve 
Subject: Re: [WSBAPT] Probate Reality Check

      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

      *** NOTICE: ATTORNEY CLIENT COMMUNICATION - PRIVILEGED & CONFIDENTIAL.  This communication may contain privileged or other confidential information. If you are not the intended recipient, or believe that you have received this communication in error, please do not print, copy, retransmit, disseminate, or otherwise use the information. Also, please indicate to the sender that you have received this communication in error, and destroy the copy you received.***

      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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