[WSBAPT] TEDRA and beneficial interest

[Marcus Fry]

Below is (5) and (6) RCW 11.96A.030 (Definitions)
(5) "Party" or "parties" means each of the following persons who has an interest in the subject of the particular proceeding and whose name and address are known to, or are reasonably ascertainable by, the petitioner:
(a) The trustor if living;
(b) The trustee;
(c) The personal representative;
(d) An heir;
(e) A beneficiary, including devisees, legatees, and trust beneficiaries;
(f) The surviving spouse or surviving domestic partner of a decedent with respect to his or her interest in the decedent's property;
(g) A guardian ad litem;
(h) A creditor;
(i) Any other person who has an interest in the subject of the particular proceeding;
(j) The attorney general if required under RCW 11.110.120<http://app.leg.wa.gov/RCW/default.aspx?cite=11.110.120>;
(k) Any duly appointed and acting legal representative of a party such as a guardian, special representative, or attorney-in-fact;
(l) Where applicable, the virtual representative of any person described in this subsection the giving of notice to whom would meet notice requirements as provided in RCW 11.96A.120<http://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.120>;
(m) Any notice agent, resident agent, or a qualified person, as those terms are defined in chapter 11.42<http://app.leg.wa.gov/RCW/default.aspx?cite=11.42> RCW;
(n) The owner or the personal representative of the estate of the deceased owner of the nonprobate asset that is the subject of the particular proceeding, if the subject of the particular proceeding relates to the beneficiary's liability to a decedent's estate or creditors under RCW 11.18.200<http://app.leg.wa.gov/RCW/default.aspx?cite=11.18.200>; and
(o) A statutory trust advisor or directed trustee of a directed trust under chapter 11.98A<http://app.leg.wa.gov/RCW/default.aspx?cite=11.98A> RCW.
(6) "Persons interested in the estate or trust" means the trustor, if living, all persons beneficially interested in the estate or trust, persons holding powers over the trust or estate assets, the attorney general in the case of any charitable trust where the attorney general would be a necessary party to judicial proceedings concerning the trust, and any personal representative or trustee of the estate or trust

If you haven’t distributed to the sister and the sister has not irrevocably waived her right to disclaim, I think he has an interest in the estate albeit contingent, but it’s still an interest, which I view the statute to encompass based upon its broad language used.  Again, I believe a TEDRA Agreement would not require notice, only a TEDRA petition in this circumstance.  Alternatively, if the only way for his right of inhertiance to vest is for her to disclaim, why not have her sign irrevocably waiver of her right to disclaim?


Marcus J. Fry
Lyon, Weigand & Gustafson, P.S.
P.O. Box 1689
Yakima, Washington  98907
Telephone:  (509) 248-7220
Facsimile:  (509) 575-1883

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of John Creahan
Sent: Thursday, August 31, 2017 3:19 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] TEDRA and beneficial interest

Marcus,
Thanks for your response. That is an interesting take on it.
I am curious about your comment that notice would be required – which I suppose gets to the heart of my question.
TEDRA requires notice to “parties,” defined to include heirs who have “an interest in the subject of the particular proceeding,” which apparently means a “beneficial interest.”
Under the facts I described, do you think Brother has an interest in the proceeding such that he would need to receive notice?
Thanks,
John

John Creahan
www.cairn-law.com<http://www.cairn-law.com/>
Now located in the heart of Fremont
3417 Evanston Ave. N, Suite 312
Seattle, WA 98103
206-578-5877


From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Marcus Fry
Sent: Thursday, August 31, 2017 3:03 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] TEDRA and beneficial interest

John:
Isn’t your question how effective you want your TEDRA Agreement to be?  I think sister and your client can enter into a TEDRA Agreement (this is different from petitioning the court under TEDRA, which notice would be required to brother)  to resolve an issue with regard to her interest in the Estate.  It will not be binding on the brother, but it appears that doesn’t matter in this case.  If somehow there is a chance that an interest would vest in him, such as her passing, etc., and you don’t want your client sued for making a wrongful distribution, then he needs to be included in the agreement IMO.  You could include in your TEDRA that she irrevocably agrees not to disclaim to address the disclaimer possibility.

Marcus J. Fry
Lyon, Weigand & Gustafson, P.S.
P.O. Box 1689
Yakima, Washington  98907
Telephone:  (509) 248-7220
Facsimile:  (509) 575-1883

NOTICES:
Confidentiality: This e-mail transmission may contain information which is protected by attorney-client, work product and/or other privileges.  If you are not the intended recipient, you are hereby notified that any disclosure, or taking of any action in reliance on the contents, is strictly prohibited.  If you have received this transmission in error, please contact us immediately and return the e-mail to us by choosing Reply (or the corresponding function on your e-mail system) and then deleting the e-mail.

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of John Creahan
Sent: Thursday, August 31, 2017 2:40 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] TEDRA and beneficial interest

Hi,
Does an alternate beneficiary under a will have a “beneficial interest” in the estate when the primary beneficiary was still alive at the testator’s death?
My client, the personal representative, and the primary beneficiary under the will (“Sister”) have agreed to resolve a particular issue, and I am drafting a TEDRA agreement to memorialize that agreement.
“Brother,” an alternate beneficiary, is estranged from the family, and I would prefer to not have to chase him down. He is not entitled to anything under the will unless Sister disclaims – which is not going to happen.
TEDRA’s definition of “party” includes “all persons beneficially interested in the estate.”
My question: does Brother’s vanishingly-remote possibility of receiving a disclaimer give him a beneficial interest in the estate?
I appreciate your thoughts on this.
John

John Creahan
www.cairn-law.com<http://www.cairn-law.com/>
Now located in the heart of Fremont
3417 Evanston Ave. N, Suite 312
Seattle, WA 98103
206-578-5877


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