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

Wed Aug 29 16:13:09 PDT 2018

If the person who has moved is incapacitated and has a guardian or conservator, RCW 11.90 provides guidance on home state issues.

Deborah Jameson
Neil & Neil, P.S.
5302 Pacific Avenue
Tacoma, WA  98408
253-475-8600
253-473-5746 FAX

If your matter is urgent, please call my office.  Also, this message is not encrypted and it may not be secure or protected by attorney-client privilege.

On Aug 29, 2018, at 4:03 PM, Philip N. Jones <pjones at duffykekel.com> wrote:

I agree with Eric on all points, particularly since he agreed with me.  His terminology is correct, I suspect, but I think that most (or some) tax authorities still use “residency” when they mean “domicile.”  So I use that same (incorrect) terminology.  But if I were writing a brief, I suspect I would follow Eric.
Phil Jones

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 Eric Nelsen
Sent: Wednesday, August 29, 2018 3:42 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Client moved out of state to an assisted living facility without contacting me

I agree with Phil on all points regarding need for probate or otherwise, and on situs, etc., but I will nitpick solely on the terminology--the distinction between domicile and residence. "Domicile" is where a person intends to make their permanent home, and has actually lived there for some period of time even if now absent. "Residence" is where a person currently sets up housekeeping, for virtually any length of time longer than a day or so, and if it's not intended as the place of permanent home, then that residence never becomes the domicile. In Re Estate of Tolson, 89 Wn.App. 21, 36, 947 P.2d 1242 (1997).

So intent is the component that shifts domicile, while residence can shift without need for an intent to "establish" a residence. There is other case law on the basic steps necessary to change domicile that I don't have on hand, but if I remember right, in essence you must move to a new place and establish residence at that new place with the intention to make it your permanent home. That makes it the new domicile. If you move to the new place without that intent, then the domicile remains at its last location.

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

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 Philip N. Jones
Sent: Wednesday, August 29, 2018 3:11 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Client moved out of state to an assisted living facility without contacting me

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> [mailto: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 <mailto: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>

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