[WSBAPT] Client moved out of state to an assisted living facility without contacting me

[Philip N. Jones]

I believe that the need for a probate (ancillary or otherwise) has little to do with residency if real estate is to be probated.  If it is CO property, it gets probated in CO.  If it is WA property, it gets probated in WA.  But it gets probated nowhere if it is in a trust.
The question of residency is a different matter, particularly for estate tax purposes, and also for income tax purposes.  I have tried several times to research the question of what the residency is if an incapacitated person is moved to state X by his family for purposes of health care.  As far as I can figure out, residency is a state of mind (intent).  If the person cannot form an intent to move from State Q to State X and remain there permanently or indefinitely, then he remains a resident of State Q.  His lack of capacity prevents him from forming an intent.  That is the best I can figure out from the small amount of case law.  I do know that the Oregon Department of Revenue informally agrees with that analysis.
Can anyone offer any authority on this point?
The situs of the trust administration probably turns on where the successor trustee is located, but check the terms of the trust, just in case.
Don't forget to figure out where the family is filing the individual income tax returns.  It can be very disappointing to do the above analysis, at great time and expense, to determine that he is a resident of State Q only to find that the family has tripped you up by filing state income tax returns as a resident of State X.  Ouch.  That puts you between a rock and a hard place.
Phil Jones
Portland, OR

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Anthony Vivenzio
Sent: Wednesday, August 29, 2018 2:54 PM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] Client moved out of state to an assisted living facility without contacting me

Listmates,
A client of ours was residing in our local assisted living facility.  We had drafted a revocable living trust and a pourover will, which he executed.  He owned real property in Colorado in addition to Washington.  To avoid the necessity of an ancillary probate in CO, we placed that property into the trust.  As it seemed he had limited time to live, and his mental facilities passed in and out of lucidity, his local residence was not placed in the trust, but is the subject of a specific bequest in his will.  We had not yet placed it in the trust as the client and his son were considering some kind of financial arrangement like a reverse mortgage that would be funded by his son in order to help the client with his finances.  About a week ago, his family brought him to a facility in CO, which he had been considering.  I would appreciate your thoughts in terms of what I should consider doing at the point as he will be living in CO for the rest of his life.  He possesses all his original documents.  He wants his son to inherit his home in WA.  Is it an option that during a period of lucidity in CO, he could execute a deed transferring his WA property into the trust to avoid an ancillary probate in WA?  Would he be considered a resident of CO now for purposes initiating a probate and trust administration process?  Your thoughts would be appreciated as I have never had a case like this before.  Thank you.


Anthony D. Vivenzio,
Attorney and Counselor at Law
PO Box 208
540 Guard Street, Ste. 260
Friday Harbor, WA  98250
(360) 378-6860
vivenziolaw at rockisland.com<mailto:vivenziolaw at rockisland.com>

CONFIDENTIAL COMMUNICATION
E-mails from this firm normally contain confidential and privileged material, are for the sole use of the intended recipient and may contain material protected by HIPAA, ERISA or other federal or state law and/or may be protected by legal privileges. Use or distribution by an unintended recipient is prohibited, and may be a violation of law. If you believe that you received this e-mail in error, please do not read this e-mail or any attached items. Please delete the e-mail and all attachments, including any copies thereof, and inform the sender that you have deleted the e-mail, all attachments and any copies thereof. Thank you.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20180829/015f575f/attachment.html>