[WSBAPT] Guardian of Estate vs. UTMA and Trust Planning

[Mark Vohr]

Following up on Stewarts comments – Unless there is a good reason not to, I would err on the side of appointing a guardian of the person and estate – which could be the same or different person(s).  Given the nature of a guardianship proceeding, which would include the appointment of a guardian ad litem and a court hearing, the end result will likely be determined in the proceeding, not the nomination, and will focus on what is minimally needed to protect the minor at the time of the appointment.

Looking at it from a different perspective, we are not saying “limited” guardian in the nomination, but a limited guardianship could easily be the result following the guardianship proceedings.  So, unless there is a very good reason for being specific (person v. estate v. limited) I would include both.  The most important aspect of the nomination is to identify the person – and not to try to predict what that role might be years in the future.  Even with a trust, the minor could be receiving their deceased parents social security or some other money that does not make it to a trust.

RCW 11.88.080  is the governing statute, and note too that as of 1/1/2017 a nomination can be made in a DPOA as well.



Mark



Ohana Fiduciary Corp.
Ohana Financial Services

Mark C. Vohr, J.D., CPG, Principal
PO Box 33710  Seattle, WA  98133
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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Reutter
Sent: Saturday, October 15, 2016 10:08 AM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] Guardian of Estate vs. UTMA and Trust Planning

Hi Listmates,

Quick technical drafting question involving estate planning for minor children. My question is in regards to guardian nomination provisions in a WIll. I have seen slightly varying language in practitioner forms for the clauses that nominate a guardian for a minor child. Some clauses nominate only as guardian of the child's person, while others appoint the guardian as guardian of both the child's person and estate.

Example:

"I nominate John Doe as guardian of my child's person..."

 vs.

"I nominate John Doe as guardian of my child's person and estate...

I understand the concepts of guardianship of a child's person vs. a child's estate, but my question is, is there any downside to having the nomination clause cover guardianship of both a child's person and estate? Or is there a reason to have the provision cover only nomination of the child's person?

If, for example, the estate plan was utilizing the UTMA (or trust planning) to pass assets to the children, would a concurrent nomination of an individual as guardian of a child's estate conflict with that UTMA or trust planning? If for example, if John Doe was UTMA custodian, and Jane Doe was guardian of the child's estate, would that create a conflict?

Or, would the guardian of the estate simply manage any future funds that might come into the child's estate, while the UTMA custodian would manage the funds passed through the WIll?

I am curious to hear some practitioner input/explanations on this issue.

Best regards,

Eric Reutter, Partner
J.D., LL.M. Taxation
14205 SE 36th Street, Suite 100
Bellevue, WA 98006
(425) 298-7110 | appelgatereutter.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__appelgatereutter.com_&d=DQMFaQ&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=K1mLMC1eFjwfeeMM-AC6zQ&m=kwOoNbaPCYLZh4AaO0HnNSJ8PUIJVNkBOvwS1PUQtxY&s=jb_UEoJivNOlmqdNwS4axTFfmzeWsqm03k0y5eGJQss&e=>

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