[WSBAPT] lapsed distribution - please help

[John Creahan]

Eric,
Good summary of the issue. For what it's worth, I think your hypothetical language (in the first paragraph) is the residuary clause, and a lapsed gift must be distributed to the remaining beneficiaries in proportion to their remaining interests in the residuary.
As I understand it, there are three types of bequests: specific ("I give my watch to my nephew"), general ("I give $5,000 to my niece"), and residuary ("I give half of my remaining assets to my sister and half to my brother"). If you are distributing percentages of the estate, you are distributing the residuary, whether the will uses that term or not.
If this is the case, the intestacy clause in RCW 11.12.120(1) would apply only in situations in which the residuary beneficiaries were all dead or otherwise unable or unwilling to accept the bequest and no anti-lapse rule applied.
My $.02.
John

John Creahan
206-621-5848
www.cairn-law.com<http://www.cairn-law.com/>


From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Monday, February 1, 2016 12:18 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] lapsed distribution - please help

Are you saying, the Will says something like, "all of my estate goes as follows: 50% to A, 20% to B, 10% to C, and 20% to Church." And, say, B has died and the gift wasn't saved by RCW 11.12.110<http://app.leg.wa.gov/RCW/default.aspx?cite=11.12&full=true#11.12.110>. So now you are left with 20% of the estate not going to anyone in particular, and there is no catchall residuary clause to say, "anything left over gets divided as follows." Is that right?

Regarding RCW 11.12.120(1)<http://app.leg.wa.gov/RCW/default.aspx?cite=11.12&full=true#11.12.120>, I think that final clause means, if the Will does not have residuary provisions, then the decedent is intestate as to the subject of that specific gift. That said, I believe the case law says there is a strong presumption that a decedent with a Will does not intend to let any portion of the estate pass by intestacy. So, depending on the exact language of the percentage gifts, and construing the Will as a whole to try to ascertain the decedent's intent, I think that 20% could either be divided proportionately between the other three (5/8ths to A, 1/8th to C, 2/8ths to Church), or could go by intestacy to the heirs at law, in proportions by right of representation - meaning the Church gets nothing.

If the language is vague enough, I think the safest route would be to take a position on it, and petition the court for an order confirming your interpretation, and give notice to all potentially affected parties. Or get everyone's agreement in writing before making the distribution.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA  98101-2837
phone 206-625-0092
fax 206-625-9040






From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Melinda Grout
Sent: Sunday, January 31, 2016 4:30 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] lapsed distribution - please help

A lapsed gift in a probate we're running is raising this issue which is making my head hurt, so I'm hoping someone can help me see the light ;)   Here's the deal:

The other beneficiaries under the Will include not only persons, but also a church.  All beneficiaries have been bequeathed a specific % of estate, and each is a different %.
RCW 11.12.120(1) states that a lapsed gift  "...falls into the residue to be distributed to the residuary clause of the will, if any, but otherwise acc to laws of descent & distribution..."
Here, there is no residuary clause in the will.
My confusion is:    the laws of descent & distribution apply to persons, but I do not see how to apply this statute to entities
Would I be safe to assume that each remaining beneficiary (whether person or entity) will share the lapsed gift equally?  Or would they share in proportion to their respective interests in the remaining part of the estate?
I really appreciate any input - I highly suspect I am just tired and not seeing the obvious here...  but I'm not too proud to ask

Melinda


-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20160201/c698f8b0/attachment.html>