[WSBAPT] Breach of Fiduciary Duty by PR and Trustee
Theresa Nguyen
theresa at tnguyenlaw.com
Thu Sep 1 09:11:51 PDT 2016
Hello all, I am looking for some advice on which route to pursue based on these facts:
Client is biological mother of minor child. Mother and Father (testator/decedent) were not married. They have been living with each other for 9 years. Father died leaving everything to minor child via an irrevocable trust. Probate was opened and completed, with sister of Father appointed as PR and trustee and pursuant to the will. Minor child is beneficiary under the trust. Sister lives out of state. The following actions were taken by the sister:
1) During probate sister contacted property manager to where mother and minor were residing. Property manager allowed sister to come into the house to take whatever she wanted, personal property and paperwork. During probate mother/child received no paperwork or notices. Mother only received some money for support of child in the beginning months of probate.
2) After completion of probate and after trust was created sister refuses to give any money or tell mother how much was in the trust. She never gave money for HEMS to child or mother.
3) Sister demands custody of minor. Mother refuses. Sister then starts a unlawful detainer action against mother to evict her out of the house even though minor was living there.
4) Mother and child has no idea how much was left behind by father.
So, do you think the best option is to reopen the probate case? What would the motion be? Or would we start a new action? Do you think this amounts to a breach of fiduciary duty?
In addition, if this probate case was filed in a Clallum county, and now that it has been closed, is it possible to ask the court to transfer it to King County?
Thank you!
--
Kindest Regards,
Theresa Nguyen, J.D., LL.M.
Law Office of Theresa Nguyen, PLLC
707 S Grady Way, Suite 600 | Renton, WA 98057
Ph. 425.998.7295 | <>Fax 425.420.2695 <>
www.tnguyenlaw.com <http://www.tnguyenlaw.com/> | <> theresa at tnguyenlaw.com <mailto:theresa at tnguyenlaw.com>
This e-mail is covered by the Electronic Communications Privacy Act, 18 U.S.C. secs. 2510-2521, and is legally privileged and confidential. If the reader of this message is not the intended recipient, the reader is hereby notified that any unauthorized review, dissemination, distribution, or copying of this message is strictly prohibited. If you are not the intended recipient, please contact the sender by reply e-mail or call the sender at 425.998.7295 <> and destroy all copies of the original message.
> On Aug 26, 2016, at 12:00 PM, wsbapt-request at lists.wsbarppt.com wrote:
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> 2. Re: Privacy rights (Jay Goldstein)
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> 4. Re: Commencing TEDRA action (Eric Nelsen)
> 5. Referral for estate planning attorney on Whidbey Island
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> ----------------------------------------------------------------------
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> Message: 1
> Date: Thu, 25 Aug 2016 12:04:58 -0700
> From: "Josh Grant" <jgrant at accima.com>
> To: "WSBA Probate & Trust Listserv" <wsbapt at lists.wsbarppt.com>
> Subject: Re: [WSBAPT] Probate Reality Check
> Message-ID: <1C0A742C57FE42109733AEA4B8383C28 at JoshPC>
> Content-Type: text/plain; charset="utf-8"
>
> 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
>
> We do not use encrypted email so this message is not secure and may not be protected by attorney client privilege. NOTE: This email address is NOT monitored 24/7. If your matter requires prompt attention please call our offices during business hours so we can discuss it with you and also discuss timing.
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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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> ------------------------------
>
> Message: 2
> Date: Thu, 25 Aug 2016 19:06:41 +0000
> From: Jay Goldstein <Jay at jaglaw.net>
> To: "'WSBA Probate & Trust Listserv'" <wsbapt at lists.wsbarppt.com>
> Subject: Re: [WSBAPT] Privacy rights
> Message-ID:
> <89EACBFF3507924BA20C575203D0F0B58948FA64 at JAGLAWSBS.jaglaw.local>
> Content-Type: text/plain; charset="us-ascii"
>
> This is a common problem in our experience.
> Judges don't like security cameras directed at neighbors.
>
> Glad to discuss.
>
> J
>
> Jay A. Goldstein
> [cid:AEF18ED8-6AEE-403C-99E7-30A379E62D84 at local]
> 1800 Cooper Point RD SW NO. 8 | Olympia, WA 98502
> Telephone 360.352.1970 | Fax 360.357.0844 | www.jaglaw.net<http://www.jaglaw.net/>
> jay at jaglaw.net<mailto:jay at jaglaw.net>
>
> Nothing contained herein should be construed as legal advice.
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> From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eden Rubenstein Toner
> Sent: Thursday, August 25, 2016 12:00 PM
> To: wsbapt at lists.wsbarppt.com
> Subject: [WSBAPT] Privacy rights
>
> A pc wants his neighbor to remove or reposition security cameras that point at the pc's house. Is anyone out there familiar with this issue? I'd appreciate ideas and referrals. Thanks.
> Eden
>
> Eden Rubenstein Toner
> Attorney at Law
> 1600-B SW Dash Point Road, #163
> Federal Way, WA 98023
> phone 206-953-4485
> IMPORTANT: This e-mail message (and any attachments accompanying it) is intended to be confidential, only for the use of the intended recipient(s). If you are not the intended recipient, or if this message has been addressed to you in error, please notify me by reply e-mail, and then destroy all copies of the message and its attachments, if any. Your cooperation is greatly appreciated. My email is not encrypted; if you have sensitive information to transmit, please contact me before sending.
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> ------------------------------
>
> Message: 3
> Date: Thu, 25 Aug 2016 12:32:49 -0700
> From: Paul Neumiller <pneumiller at hotmail.com>
> To: "'WSBA Probate & Trust Listserv'" <wsbapt at lists.wsbarppt.com>
> Subject: Re: [WSBAPT] Probate Reality Check
> Message-ID: <BLU436-SMTP135F690F8F1D3A85110AADCD2ED0 at phx.gbl>
> Content-Type: text/plain; charset="utf-8"
>
> As it turns out, Medicaid is NOT an issue. Sister was turned down for Medicaid because she had a $30K IRA which the family is currently spending down for her care. Sister also has substantially cut food intake (remember, she?s in hospice care and is not expected to last long.) With death imminent (yeah, I know, you never know. My own father went in and out of hospice care three times before he finally died), the family may just hold off the probate until Sister passes.
>
> Because it seemed a relevant question and several attorneys asked for my research results, I kept up the question regarding the fiduciary?s conflict of interest for an IRS disclaimer.
>
>
>
> From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of J A Cyphers
> Sent: Thursday, August 25, 2016 11:46 AM
> To: Probate List Serve <wsbapt at lists.wsbarppt.com>
> 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
>
> <mailto:jacyphers at gmail.com> jacyphers at gmail.com
>
>
>
> We do not use encrypted email so this message is not secure and may not be protected by attorney client privilege. NOTE: This email address is NOT monitored 24/7. If your matter requires prompt attention please call our offices during business hours so we can discuss it with you and also discuss timing.
>
>
>
> This e-mail is intended for the exclusive use of the person or persons to whom it is addressed. The Electronic Communications Privacy Act, 18 USC Sections 2510-2521 applies to this e-mail. Unauthorized review of distribution is strictly prohibited. If you are not the intended recipient, please contact the sender by phone or reply e-mail. Do not disseminate this e-mail and destroy the original e-mail and any copies.
>
>
>
> -------Original Message-------
>
>
>
> From: Paul Neumiller <mailto:pneumiller at hotmail.com>
>
> Date: 8/25/2016 11:17:04 AM
>
> To: 'WSBA Probate <mailto:wsbapt at lists.wsbarppt.com> & 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> [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 <mailto: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 <mailto: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.
>
>
>
>
>
>
>
>
> _______________________________________________
> WSBAPT mailing list
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> ------------------------------
>
> Message: 4
> Date: Thu, 25 Aug 2016 19:22:05 +0000
> From: Eric Nelsen <Eric at sayrelawoffices.com>
> To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> Subject: Re: [WSBAPT] Commencing TEDRA action
> Message-ID:
> <8CF6ADB264BB704BB884B2ED9C1931D40188625812 at SBS2011.SayreLawOffices.local>
>
> Content-Type: text/plain; charset="us-ascii"
>
> I think it's not so basic, because I think it's unclear. Safest bet is to use service of process on anyone you think you might want a personal judgment entered against (meaning requiring something from that person, rather than simply determining their rights to a share of the estate property). Everyone else could get Petition and Summons by mail under RCW 11.96A.110<http://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.110>.
>
> Sincerely,
>
> Eric
>
> Eric C. Nelsen
> SAYRE LAW OFFICES, PLLC
> 1417 31st Ave South
> Seattle WA 98144-3909
> phone 206-625-0092
> fax 206-625-9040
>
> Please Note that We Have Moved. We have moved our Seattle office to Mount Baker Ridge (a small commercial community just above the I-90 tunnel). Our new address is 1417 31st Avenue South, Seattle WA 98144. All other contact information remains the same.
>
> From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of jeffrey winter
> Sent: Thursday, August 25, 2016 11:41 AM
> To: WSBA Probate & Trust Listserv
> Subject: [WSBAPT] Commencing TEDRA action
>
>
> For you TEDRA gurus out there,
>
>
>
> Forgive a very basic question, but does commencing a TEDRA action require personal service - or is service by mail sufficient?
>
>
>
> Jeff Winter
> Jeffrey D. Winter
> Law Office of Jeffrey D. Winter, P.S.
> 604 North Main Street
> Ellensburg, WA 98926
> (509) 925-9600 tel.
> (509) 925-9606 fax
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> ------------------------------
>
> Message: 5
> Date: Fri, 26 Aug 2016 16:39:27 +0000
> From: "Brink, Kerry" <Kbrink at vjglaw.com>
> To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> Subject: [WSBAPT] Referral for estate planning attorney on Whidbey
> Island
> Message-ID: <E2F6F812-6EC3-4302-95ED-744F914AC37F at vjglaw.com>
> Content-Type: text/plain; charset="us-ascii"
>
> Can you refer me to an estate planning attorney on Whidbey Island, please?
> Thank you,
>
> Kerry Brink
> Sent from my iPhone
>
>
>
>
> ------------------------------
>
> Message: 6
> Date: Fri, 26 Aug 2016 10:09:40 -0700
> From: Whidbey Law Group <whidbeylawgroup at gmail.com>
> To: "WSBA Probate & Trust Listserv" <wsbapt at lists.wsbarppt.com>
> Subject: Re: [WSBAPT] Referral for estate planning attorney on Whidbey
> Island
> Message-ID:
> <CAKQ6LeoME8G6Xg1hZn323drMcGC4sG7F1Z+c8kNB_DrV5y=GCQ at mail.gmail.com>
> Content-Type: text/plain; charset="utf-8"
>
> Our firm, located in Freeland, WA on the southern end of Whidbey Island can
> assist with estate planning including simple wills, POA's, Health Care
> Directives and Trusts. Ken O'Mhuan and Deborah Holbert have 47 and 5 years
> respectively of experience. If interested please call or email to set up an
> appointment.
>
> Regards,
>
> Marcy Schmidt
> Legal Assistant
>
>
>
> *Whidbey Law Group* *PLLC*
> *G. Kenneth O'Mhuan, J.D., Esq.*
> *Deborah Holbert, J.D., Esq. *
> *5595 Harbor Ave., Suite B*
> *PO Box 1150 *
>
> *Freeland, WA 98249*
>
> *360-331-7456*
>
> *whidbeylawgroup.com <http://whidbeylawgroup.com> *
>
>
>
> This email transmission from Whidbey Law Group is intended only for the
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> *Please note*: Attorney work is always confidential and often extremely
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> On Fri, Aug 26, 2016 at 9:39 AM, Brink, Kerry <Kbrink at vjglaw.com> wrote:
>
>> Can you refer me to an estate planning attorney on Whidbey Island, please?
>> Thank you,
>>
>> Kerry Brink
>> Sent from my iPhone
>>
>>
>> _______________________________________________
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> ------------------------------
>
> Message: 7
> Date: Fri, 26 Aug 2016 17:17:24 +0000
> From: "Juhl, Hans P." <Juhl at ryanlaw.com>
> To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> Subject: Re: [WSBAPT] Referral for estate planning attorney on Whidbey
> Island
> Message-ID:
> <A980AC5A5F127A4D8971EEC9C0F4DC1DD07770 at RSCSTORE.rsc.ryanlaw.com>
> Content-Type: text/plain; charset=ISO-8859-1
>
> Mike Waller or Chris Skinner in Oak Harbor - (360) 679-1240
>
> Hans P. Juhl
> Attorney
> Ryan, Swanson & Cleveland, PLLC
> 1201 Third Avenue, Suite 3400 | Seattle WA 98101-3034
> Direct 206.654.2203 | Direct Fax 206.652.2903
> juhl at ryanlaw.com | www.ryanswansonlaw.com
>
> -----Original Message-----
> From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Brink, Kerry
> Sent: Friday, August 26, 2016 9:39 AM
> To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> Subject: [WSBAPT] Referral for estate planning attorney on Whidbey Island
>
> Can you refer me to an estate planning attorney on Whidbey Island, please?
> Thank you,
>
> Kerry Brink
> Sent from my iPhone
>
>
> _______________________________________________
> WSBAPT mailing list
> WSBAPT at lists.wsbarppt.com
> http://mailman.fsr.com/mailman/listinfo/wsbapt
>
> --
>
> CONFIDENTIALITY: This e-mail and its attachments are confidential and
> may be protected by the attorney/client privilege, work product
> doctrine, or other nondisclosure protection. If you believe that it has
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> store or disseminate the e-mail or any attachments or the information
> in them. If you have received this communication in error, please
> notify this firm immediately by reply to this communication or by
> calling toll free 800-458-5973 or if International collect
> at (206) 464-4224.
>
>
>
> ------------------------------
>
> Message: 8
> Date: Fri, 26 Aug 2016 10:25:03 -0700
> From: Paul Neumiller <pneumiller at hotmail.com>
> To: "'WSBA Probate & Trust Listserv'" <wsbapt at lists.wsbarppt.com>
> Subject: Re: [WSBAPT] Referral for estate planning attorney on Whidbey
> Island
> Message-ID: <BLU436-SMTP2548B027BC42CC8E32DF3B6D2EC0 at phx.gbl>
> Content-Type: text/plain; charset="us-ascii"
>
> There are many of us on Whidbey who do estate planning work, including me.
> In fact, I am giving an estate planning seminar at the Coupeville library in
> October for the Island County Bar Association Volunteer Lawyers Program. I
> would be happy to accept your referral.
>
>
>
> -----Original Message-----
> From: wsbapt-bounces at lists.wsbarppt.com
> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Brink, Kerry
> Sent: Friday, August 26, 2016 9:39 AM
> To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> Subject: [WSBAPT] Referral for estate planning attorney on Whidbey Island
>
> Can you refer me to an estate planning attorney on Whidbey Island, please?
> Thank you,
>
> Kerry Brink
> Sent from my iPhone
>
>
> _______________________________________________
> WSBAPT mailing list
> WSBAPT at lists.wsbarppt.com
> http://mailman.fsr.com/mailman/listinfo/wsbapt
>
>
>
>
> ------------------------------
>
> Message: 9
> Date: Fri, 26 Aug 2016 18:06:47 +0000
> From: John Creahan <john at cairn-law.com>
> To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> Subject: Re: [WSBAPT] IRA to Beneficiaries of a Descendant's Trust
> (Beneficiary Language for Plan Administrator)
> Message-ID:
> <CY1PR0601MB16114EA6B463952ABCF2F5E596EC0 at CY1PR0601MB1611.namprd06.prod.outlook.com>
>
> Content-Type: text/plain; charset="utf-8"
>
> Hi David,
> Although it is possible to draft an IRA trust that allows the trustee to retain required minimum distributions while still qualifying as a designated beneficiary, conduit trusts ? which require the trustee to distribute RMD ? are much simpler and less likely to create income tax or designated-beneficiary issues.
> In this case, your clients are telling you that they don?t want their grandchildren to receive a large inheritance prior to age 30. If the grandparents left a $1 million IRA to a conduit trust for their grandchildren?s benefit, when the oldest was 25, the trustee would be required to distribute the entire RMD among the trust beneficiaries ? but the RMD in this case would be about $17,000. And, it appears this would only occur if grandchildren?s father had already passed, so the grandkids might actually need the money.
> If the grandparents were my clients, I would strongly recommend the conduit trust, even though the grandkids would receive minor distributions before age 30, and I would try to help them understand that, in the unlikely event the grandchildren inherit the IRA, a potential early withdrawal from the inherited IRA creates a more substantial financial risk than relatively small distributions.
> Hope this helps,
> 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 David Faber
> Sent: Thursday, August 25, 2016 10:17 AM
> To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> Subject: Re: [WSBAPT] IRA to Beneficiaries of a Descendant's Trust (Beneficiary Language for Plan Administrator)
>
> Jared,
>
> UTMA is a reasonable option. The problem we face, however, is that the client is keen on 30 being the age that the grandkids receive the IRA free of trust. The difference between 25 and 30 can be night and day... Now I am wrestling with the language trying to make sure that we navigate the income tax issues but having significant trouble wrapping my head around all of the details in the rules.
>
> 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 7:10 PM, Jared E. Adams <jared at condieadams.com<mailto:jared at condieadams.com>> wrote:
> Why not consider naming the grandchildren as the contingent beneficiaries, but designating a custodian under the Uniform Transfers to Minors Act? Under RCW 11.114.200, you can elect to extend the custodianship until a beneficiary is 25. It?s not customizable like a trust, but you avoid the income tax problems associated with putting retirement accounts into trust.
>
> Jared
>
>
> Jared E. Adams, JD, LL.M.
>
> Condie & Adams, PLLC
> 611 4th Avenue, Suite A
> Kirkland, WA 98033
> (voice): (425) 450-1040<tel:%28425%29%20450-1040>
> (fax): (425) 450-1041<tel:%28425%29%20450-1041>
> (email): jared at condieadams.com<mailto:jared at condieadams.com>
> (web): www.condieadams.com<http://www.condieadams.com/>
>
> Unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.
>
> PLEASE READ THIS ENTIRE DISCLAIMER
> This message is from the Law Office of CONDIE & ADAMS, PLLC, and is intended only for the addressee. The information contained in this message is privileged, confidential, and protected by the attorney-client or attorney work product privileges. Unauthorized forwarding, printing, copying, distribution, disclosure or use of such information is strictly prohibited. If you are not the addressee, please promptly delete this message and notify the sender of the delivery error by return e-mail or you may call our office at (425) 450-1040<tel:%28425%29%20450-1040>. Nothing in this message should be interpreted as a digital or electronic signature that can be used to authenticate a contract or other legal document.
>
> From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>] On Behalf Of Derek Jensen
> Sent: Tuesday, August 23, 2016 1:23 PM
> To: WSBA Probate & Trust Listserv
> Subject: Re: [WSBAPT] IRA to Beneficiaries of a Descendant's Trust (Beneficiary Language for Plan Administrator)
>
> David,
>
> Natalie Choate has a whole host of beneficiary designation forms (one of which may meet your needs) and related discussions in her book. You can know subscribe to a digital version of her book, ?Life and Death Planning for Retirement Benefits? for $9/ month on a month to month basis from her web site https://www.ataxplan.com/.
>
> Also, since so many income bad tax results can happen with a distribution plan like you have described, be aware of the accumulation trust issues for naming the trust as a designated beneficiary. It would be terrible to get stuck with a 5 year distribution requirement and a tax rate of 39.6% on everything over $12,000 or so a year.
>
> Sincerely,
>
> Derek W. Jensen, JD, LLM
> Managing Attorney
>
>
> [New Logo.tif]
>
> Jensen Law Office, PLLC
> 1833 N 105th St., Suite 301
> Seattle, WA 98133
> Tel: 206-547-1412
> Fax: (206) 770-6524
>
> Everett, Washington
> Tel: (425) 374-1712<tel:%28425%29%20374-1712>
>
> 8201 164th Ave NE, Suite 200
> Redmond, WA 98052
> Tel: (425) 698-2214<tel:%28425%29%20698-2214>
>
> Find us on the web at: www.jensenestatelaw.com<http://www.jensenestatelaw.com/>
>
> NOTICE: This e-mail message and all attachments transmitted with it may contain legally privileged and confidential information intended solely for the use of the addressee. If you are not the intended recipient, you are hereby notified that any reading, dissemination, distribution, copying, or other use of this message or its attachments is strictly prohibited. If you have received this message in error, please notify the sender immediately by electronic mail or by telephone (206) 547-1412<tel:%28206%29%20547-1412> and delete this message and any copies or backups. Thank you.
>
> From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of David Faber
> Sent: Tuesday, August 23, 2016 12:18 PM
> To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
> Subject: [WSBAPT] IRA to Beneficiaries of a Descendant's Trust (Beneficiary Language for Plan Administrator)
>
> WSBAPT List:
>
> I am working with an unmarried client who just lost one or their two children, which has left them dwelling on the "what ifs" of losing their other child. The bulk of the client's assets are held in IRA and they are still working. The client has named their surviving child as the first contingent beneficiary of the IRA and wants their grandchildren to be the beneficiaries if their surviving child predeceases. The complicating factor is that the client does not want the grandkids (who are all quite young--not even school-age yet) receiving a large supply of money before they can learn the value of money and instead only wants the kids to receive the money upon reaching the age of thirty. I believe I have amended the client's trust with sufficient language to allow the Trustee to administer the IRA, but I want to make sure I'm providing proper language to the plan administrator. Does anyone have example language that they provide the client to send to their plan administrator !
> for this purpose that they would be willing to share?
>
> Best,
> David J. Faber
> Faber Feinson PLLC
> 210 Polk Street, Suite 1
> Port Townsend, WA 98368
> (360) 379-4110<tel:%28360%29%20379-4110>
>
> *** 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.***
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> ------------------------------
>
> Message: 10
> Date: Fri, 26 Aug 2016 11:29:30 -0700
> From: Stewart Feil <feil at cni.net>
> To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> Subject: [WSBAPT] TEDRA Special Needs Court Created Trust
> Message-ID: <ED1ED5D5-18F9-40DA-A8AE-6BE84DB4398A at cni.net>
> Content-Type: text/plain; charset="utf-8"
>
> The court created a Special Needs Trust for a teenager. The teenager went through foster care and has since been adopted and is now an adult, but remains legally incapacitated. Adoptive parents have guardianship. Bio-grandma is trustee. She wants to pass her duties to guardians. The guardian would like to change venue as well.
>
>
>
> The court created trust requires approval by the court and good cause shown for change of trustee. The NJDRA provisions were not authorized in the court order.
>
>
>
> I am looking for the best way to proceed with this. Have any of you TEDRA wizards handled a similar petition? ?Anyone willing to share some language from a petition to the court for trust revision?
>
>
>
> --
>
>
>
> Warm regards,
>
>
>
> Stewart Feil
>
> Hanigan Law Office, PS
>
> PO Box 39 - 68 Main Street
>
> Cathlamet, WA 98612
>
> (360) 795-3494
>
> (360) 795-3001 (f)
>
>
>
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> End of WSBAPT Digest, Vol 23, Issue 24
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