[WSBAPT] Client moved out of state to an assisted living facility without contacting me
Robert R. Cole
cole-gilday at stanwoodlaw.net
Wed Aug 29 16:37:36 PDT 2018
While in law school in NC I convinced the tax authorities that although
residents of NC we were still domiciled in WA, so my wife's earnings
were community property and thus half mine, thereby allowing us to use
two exemptions and lower tax brackets.
Very Truly Yours,
Robert R. Cole
Law Office of Cole & Gilday, P.C.
10101 - 270th St. NW
Stanwood, WA 98292
(360) 629-2900 (Telephone)
(360) 629-0220 (Fax)
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On 8/29/2018 4:03 PM, Philip N. Jones 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] *On Behalf Of *Eric Nelsen
> *Sent:* Wednesday, August 29, 2018 3:42 PM
> *To:* WSBA Probate & Trust Listserv <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] *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] *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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