[WSBAPT] Was a revocable living trust created?

[Christopher Small]

I don't think listing "my heirs" as beneficiaries is the same as "my
probate estate." The heirs are remainder beneficiaries.

Cheers,

Christopher Small
CMS Law Firm LLC <http://cmslawfirm.com>
150 Lake St. S., Suite 218
Kirkland, WA 98033
206.659.1512


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On Thu, Jun 7, 2018 at 7:21 AM, Rod Harmon <rodharmon at msn.com> wrote:

> In a revocable living trust instrument, the trustor named himself as
> trustee and lifetime beneficiary, and then: “Distribution of the Trust
> Following my Death.  Upon my death, any asset that remains in this Trust
> shall be distributed in accordance with the laws of intestate succession
> then in effect in the State of Washington.”
>
> RCW 11.98.011 (1) provides in part:  “A trust is created only if … (e)
> The same person is not the sole trustee and sole beneficiary.”
>
> Was a trust created?
>
>
>
> RCW 11.98.011(1) an enactment of Section 402(a)(5) of the Uniform Trust
> Code, the comment to which explains that it is addresses the doctrine of
> merger and gives this example:  "An example of a trust to which the
> doctrine of merger would apply is a trust of which the settlor is sole
> trustee, sole beneficiary for life, and with the remainder payable to the
> settlor's probate estate."
>
> In their commentary on the Washington statute, Boxx and Groblewski
> observe: “Under the statute, if the same person is the sole trustee and
> the sole beneficiary, then the trust is not valid. This is a codification
> of the doctrine of merger, recognized in Estate of Lonneker v. Lonneker [45
> Wn.App. 222 (1986)]. Under the doctrine of merger, if one person holds
> all the managerial and ownership power as trustee, and all beneficial
> interests as the sole beneficiary, then the person's interest is fee
> simple. Note that if there are remainder beneficiaries, even if the trust
> is revocable, the doctrine of merger does not apply because there are other
> beneficiaries.”  88 Wash. L. Rev. 813, 887 (2013).
>
>
>
> The trust provisions are:
>
> § 3.01 Distributions During My Lifetime.  During my Lifetime, my Trustee
> may distribute as much of the income and principal of the trust to me as my
> Trustee may determine advisable for any purpose subject to the limitations
> of § 2.07.
>
> § 3.02.  Distribution of the Trust Following my Death.  Upon my death, any
> asset that remains in this Trust shall be distributed in accordance with
> the laws of intestate succession then in effect in the State of Washington.
>
>
>
> So the question is whether terminating the trust on the death of the
> trustor/trustee/beneficiary and distributing to his then-heirs at law is
> enough to avoid merger.
>
>
>
>
>
> Rod Harmon
>
>
>
> *RODNEY T. HARMON*
>
> *       Attorney at Law*
>
>          P.O. Box 1066
>
>       Bothell, WA   98041
>
>      Tel:   (425) 402-7800
>
>      Fax:  (425) 458-9096
>
>     www.rodharmon.com
>
>    rodharmon at msn.com
>
>
>
>
>
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>
>
>
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