[WSBAPT] FW: One spouse's IRA as community property?
JOHN J SULLIVAN
sullaw at comcast.net
Tue Jan 30 12:34:53 PST 2018
Jared and Laurel:
Here's a link to 2016 CLE materials by Judd Marten. Take a look at Section III starting at page 20.
http://www.spokaneepc.org/assets/Councils/Spokane-WA/library/Coordinating%20IRAs%20with%20Estate%20Planning%20by%20Judd%20Marten.pdf
I'm attaching a promissory note I used back in 2004. I'm not sure I recall why I did not set its term at the death of the surviving spouse or make it a SCIN. Perhaps he was planning on selling the house and pay it off to move the cash into the CST.
Hope that helps.
John Sullivan
> On January 30, 2018 at 10:03 AM Laurel Tiller <LTiller at tillerlaw.com> wrote:
>
>
> John, I confess that I am blatantly awaiting the opportunity to sponge off your work and citation of some 20 years ago. Did you find your prior work? Have you posted it and I have just missed it? Thank you.
>
>
>
> Laurel
>
>
>
> From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of John J. Sullivan
> Sent: Thursday, January 25, 2018 6:59 PM
> To: WSBA Probate & Trust Listserv
> Subject: Re: [WSBAPT] One spouse's IRA as community property?
>
>
>
> Jared:
>
>
>
> It’s been almost 20 years since I researched this, but my recollection is yes, the residuary clause applies. I’ll see if I can find it tomorrow.
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> The problem is I’ve never known an IRA custodian who will go along with it.
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>
> John Sullivan
>
> Sent from my iPad
>
>
> On Jan 25, 2018, at 4:41 PM, Jared E. Adams <jared at condieadams.com mailto:jared at condieadams.com > wrote:
>
> > >
> > Hi John,
> >
> >
> >
> > Thanks for responding and including the reference to RCW 6.15.020(6)! I’m interested in your additional thoughts and the thoughts of other on this issue.
> >
> >
> >
> > The RCW you cited provides “the nonparticipant, nonaccount holder spouse may transfer or distribute the community property interest of the nonparticipant, nonaccount holder spouse in the participant or account holder spouse's employee benefit plan to the nonparticipant, nonaccount holder spouse's estate, testamentary trust, inter vivos trust, or other successor or successors pursuant to the last will of the nonparticipant, nonaccount holder spouse.”
> >
> >
> >
> > I find the language that the spouse may transfer or distribute his or her CP interest somewhat ambiguous. If the deceased spouse’s Will states he or she specifically gives his or her CP interest in the IRA to someone, I think the gift is clearly valid and enforceable under the statute. But, if the spouse simply gives his or her residuary estate to a trust (or someone else), does that really control the disposition of half the surviving spouse’s IRA?
> >
> >
> >
> > In other words, I agree the nonparticipant spouse has the right to give half the IRA, but I don’t know that a residuary clause in the Will exercises that right.
> >
> >
> >
> > Does anyone know of any cases on point? I’m happy to be wrong, and I’d love to learn from others’ experiences on this.
> >
> >
> >
> > Thanks,
> >
> >
> >
> > Jared
> >
> >
> >
> >
> >
> > Jared E. Adams, JD, LL.M.
> >
> >
> >
> > Condie & Adams, PLLC
> > 611 4th Avenue, Suite A
> > Kirkland, WA 98033
> > (voice): (425) 450-1040
> > (fax): (425) 450-1041
> >
> > (email): jared at condieadams.com mailto:jared at condieadams.com
> >
> > (web): www.condieadams.com http://www.condieadams.com/
> >
> >
> >
> > Unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.
> >
> >
> >
> > PLEASE READ THIS ENTIRE DISCLAIMER
> >
> > This message is from the Law Office of CONDIE & ADAMS, PLLC, and is intended only for the addressee. The information contained in this message is privileged, confidential, and protected by the attorney-client or attorney work product privileges. Unauthorized forwarding, printing, copying, distribution, disclosure or use of such information is strictly prohibited. If you are not the addressee, please promptly delete this message and notify the sender of the delivery error by return e-mail or you may call our office at (425) 450-1040. Nothing in this message should be interpreted as a digital or electronic signature that can be used to authenticate a contract or other legal document.
> >
> >
> >
> > 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 J. Sullivan
> > Sent: Thursday, January 25, 2018 4:17 PM
> > To: WSBA Probate & Trust Listserv
> > Subject: Re: [WSBAPT] One spouse's IRA as community property?
> >
> >
> >
> > Ralph:
> >
> >
> >
> > I’ve dealt with this situation numerous times.
> >
> >
> >
> > Assuming the IRA is CP, the non-participant’s will disposes of her interest. See RCW 6.15.020(6). Odd placement. Odd provision.
> >
> >
> >
> > Usually it’s highly undesirable to force distribution of the IRA. What I usually do is have the survivor issue a promissory note to the CST if it’s important to find it.
> >
> >
> >
> > John Sullivan
> >
> > Sent from my iPhone
> >
> >
> > On Jan 25, 2018, at 3:27 PM, Jared E. Adams <jared at condieadams.com mailto:jared at condieadams.com > wrote:
> >
> > > > >
> > > <image001.jpg>
> > >
> > > I agree one-half of the IRA would be included in her “gross estate” for estate tax purposes. But, would one-half of the IRA be included in her probate estate, and subject to disposition under her Will? Characterizing the asset as community property doesn’t necessarily make it subject to probate.
> > >
> > >
> > >
> > > Jared
> > >
> > >
> > >
> > >
> > >
> > > Jared E. Adams, JD, LL.M.
> > >
> > >
> > >
> > > Condie & Adams, PLLC
> > > 611 4th Avenue, Suite A
> > > Kirkland, WA 98033
> > > (voice): (425) 450-1040
> > > (fax): (425) 450-1041
> > >
> > > (email): jared at condieadams.com mailto:jared at condieadams.com
> > >
> > > (web): www.condieadams.com http://www.condieadams.com/
> > >
> > >
> > >
> > > Unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.
> > >
> > >
> > >
> > > PLEASE READ THIS ENTIRE DISCLAIMER
> > >
> > > This message is from the Law Office of CONDIE & ADAMS, PLLC, and is intended only for the addressee. The information contained in this message is privileged, confidential, and protected by the attorney-client or attorney work product privileges. Unauthorized forwarding, printing, copying, distribution, disclosure or use of such information is strictly prohibited. If you are not the addressee, please promptly delete this message and notify the sender of the delivery error by return e-mail or you may call our office at (425) 450-1040. Nothing in this message should be interpreted as a digital or electronic signature that can be used to authenticate a contract or other legal document.
> > >
> > >
> > >
> > > 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, January 25, 2018 3:04 PM
> > > To: WSBA Probate & Trust Listserv
> > > Subject: Re: [WSBAPT] One spouse's IRA as community property?
> > >
> > >
> > >
> > > Hi Ralph,
> > >
> > > The IRA funds are presumed to be community property, assuming the were earned during marriage, and one half would be includible in her estate. Titling in one spouse’s name is irrelevant to determining whether the account is community.
> > >
> > > Are you thinking about possibly funding the credit trust with the IRA assets?
> > >
> > > Hope this helps,
> > >
> > > 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 Ralph Maimon
> > > Sent: Thursday, January 25, 2018 2:09 PM
> > > To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com mailto:wsbapt at lists.wsbarppt.com >
> > > Subject: [WSBAPT] One spouse's IRA as community property?
> > >
> > >
> > >
> > > Folks
> > >
> > >
> > >
> > > My client’s wife died. We are probating her will. There is a credit trust. The great bulk of the estate is in the husband’s IRA with TIAA. Any thoughts as to whether the TIAA account would be considered community property, whereby half of its value can be considered part of her estate?
> > >
> > >
> > >
> > > Ralph Maimon
> > >
> > > LAW OFFICE OF RALPH MAIMON, P.S.
> > >
> > > 2811 E. Madison Street, Suite 202
> > >
> > > Seattle, WA 98112
> > >
> > > (206) 323-0911 Office
> > >
> > > (206) 462 1505 Fax
> > >
> > > rmaimon at maimonlaw.com mailto:rmaimon at maimonlaw.comhttp://www.maimonlaw.com
> > >
> > >
> > >
> > > > >
> > > > >
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