[WSBAPT] Non-PR & Non-Trustee Liability/Culpability?

[Eric Nelsen]

Paul--did the Will have a specific bequest of the house to daughter? If the proceeds are still traceable, daughter could argue that the specific bequest of the house was not adeemed by extinction, and therefore she should get all identifiable proceeds remaining after sale of the house.

I just spent some time fiddling with ademption law research not too long ago as part of a WSBA legislation subcommittee, and there's plenty of room in Washington to make that argument; case law is sparse, there are no relevant statutes, and the Restatement generally supports avoiding ademption of a specific bequest if there is a traceable way to fulfill it using other property. Contact me directly if you want to talk it over.

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 Paul Neumiller
Sent: Monday, April 24, 2017 11:26 AM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] Non-PR & Non-Trustee Liability/Culpability?

"Can you elaborate on the sentence, "While she is paying off the creditors, she intends to keep the left over money".  "Is she using mom's money to pay off the creditors? If so, how?"
<<<Daughter was listed as a co-owner of Mom's bank accounts pre-death so Daughter has access to the funds post-death>>>>
"How is she going to keep the left over money?"  <<<by not paying it to distant named relatives so probably don't even know that Mom has died since they have not been heard from in decades.>>>  <<<The problem, in the daughter's mind, is that daughter was to receive Mom's house and the rest and residual beneficiaries were going to receive a minor sum of around $500 at the very most.  BUT the house had to be sold and Mom went on Medicaid (daughter has paid off the Medicaid amount).  And then Mom died so now the rest and residual beneficiaries are going to get a lot more money than Mom desired (And it doesn't help that Daughter is close to being homeless herself.) >>>


[cid:image001.jpg at 01D2BCF1.607AB380]

From: 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: Friday, April 21, 2017 4:19 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Non-PR & Non-Trustee Liability/Culpability?

Paul,

Can you elaborate on the sentence, "While she is paying off the creditors, she intends to keep the left over money".

Is she using mom's money to pay off the creditors? If so, how?

How is she going to keep the left over money?

The point of my question is that if your client's mom's assets are subject to the will, then your client must be planning to use some document fraudulently. Once you determine which document is being misused, you should be able to determine what liabilities your client will be subject to. You can add this information into the CYA/withdrawal letter.

>From the way you phrased the question, it sounds like she is using a power of attorney and the bank does not know that mom is deceased. If that is the case, then any use of the funds after death, even the funds to pay creditors, was a fraudulent use.

Sincerely,

Derek W. Jensen, JD, LLM
Jensen Law Office, PLLC

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Thursday, April 20, 2017 1:27 PM
To: wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Non-PR & Non-Trustee Liability/Culpability?

A client, after several rationalizations, wants to keep deceased mom's estate.  No probate will be opened.  While she is paying off the creditors, she intends to keep the left over money (less than $50k) because "that is what Mom wanted" despite being contrary to Mom's Will (despite my advice otherwise and multiple cya letters).  In doing research, I find  cases regarding PR liability and applicable statute of limitation and trustees and their statutes of limitation (appears to be three years after discovery), but I am not finding cases regarding the non-PR and non-trustee liability and culpability?  Any thoughts?  The beneficiaries under the Will probably don't even know that "Mom" has passed (and in other state.)

[cid:image002.jpg at 01D2BCF1.607AB380]
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20170424/4e6aec61/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.jpg
Type: image/jpeg
Size: 7323 bytes
Desc: image001.jpg
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20170424/4e6aec61/image001.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.jpg
Type: image/jpeg
Size: 7188 bytes
Desc: image002.jpg
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20170424/4e6aec61/image002.jpg>