[WSBAPT] 2nd Request: Supplementing Terms for a Testamentary Trust

[Jen Doehne]

Hi Thomas-
Check out RCW 11.98.011 first and make sure that your Testamentary Trust contains the required terms to even be considered a trust. Based on this review, if you are sure that your Testamentary Trust contains the required terms, the rest of the terms can be filled in with Chapter 11.98 RCW.

You will also want to do case research on the term “welfare”. Typically the IRS states that the “ascertainable standard” for specific powers of appointment (and thus, not included in the Trustee’s estate) are “health, education, maintenance and support”. If a term strays too far from this ascertainable standard, it may be seen as a general power of appointment and thus, includable in the Trustee’s estate. (This is because certain terms allow the Trustee to distribute some or all of the Trust Corpus…even if that was not the Testator/Grantor’s intent.) I do not know off the top of my head if “welfare” is considered equivalent to “maintenance and support”.

You can always ask the court to assist you in tough decisions – even if you have a nonintervention estate. But it would be wise to have a proposed solution and ask the court if that proposal would be upheld…I doubt the court would do the work for you.

Hope this helps!
Jen

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Thomas Hackett
Sent: Thursday, August 23, 2018 10:05 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] 2nd Request: Supplementing Terms for a Testamentary Trust

Colleagues-

Trying this request for a 2nd time.

We have a probate where the Will creates testamentary trusts for the benefit of certain family members under the age of 25. The only direction on the terms for the trust is that they are the the person's "health, education and welfare." What do you typically do for providing supplemental terms (rely upon statutes and case law?) for the administration of the trust, including naming a trustee?

How does the answer change when you have non-intervention powers and when you don't?

Thank you in advance for your insights.

[https://docs.google.com/uc?export=download&id=0B-SxUq1b3OJKWTdxRWo3ZThmaGs&revid=0B-SxUq1b3OJKNVVIcDZreEwxdGNIb1Q5VDRDU0RrUTVoL2E4PQ]

Thomas A. Hackett
Attorney | NW Legacy Law Center, P.S.
360-975-7770 | http://nwlegacylaw.com<http://nwlegacylaw.com/>
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