[WSBAPT] Question re: Encumbered Title to Probate Asset

[Randolph Petgrave]

There is also an argument to be made that the daughter is now barred from any beneficial interest in the trust (or estate) because of her actions.  There is case law with fact patterns where well meaning friends give estate planning advice or help someone prepare estate planning documents where they receive a small bequest.  Courts have readily barred the gift on the idea that 1) the advice and/or assistance constitutes the unauthorized practice of law, and 2) RPC 1.8 prohibits a lawyer from drafting himself into a client’s document as a beneficiary. See, In re Estate of Marks, 91 Wash. App. 325, 957 P. 2d 235 (1998).

Is the daughter who drafted the RLT an attorney?  If so, she would initially meet the exception to RPC 1.8, however, given the unreasonable size of her beneficial interest (as compared to the other siblings), it would similarly fail.

Good luck,
Randy

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Tonya Hebert
Sent: Monday, September 17, 2018 2:54 PM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] Question re: Encumbered Title to Probate Asset


Client opened probate for her mother. There are five siblings.  Several weeks after probate opened the client found there was a Revocable Trust signed by mother while on her death bed which gave all assets to one daughter.  The one daughter drafted the trust instrument and was the sole beneficiary of the trust.  The beneficiary daughter tried to convey real property into the trust by deed on the same day the mother signed the trust.  The deed is invalid for many reasons including no-notary, no grantor signature, and no properly named grantee (named Revocable Trust only not Trustee).  The other assets which may have transferred into this trust include personal pro! perty with a minimal value.

Question:  Is there any reason to try to invalidate the trust all together?  Or..... (i) open a TEDRA to ask the judge to invalidate the wild deed, or (ii) File a petition to ask the judge to invalidate the wild deed; or (iii) proceed knowing the deed is invalid and continue on through the probate process?  The beneficiary daughter who drafted the trust is living in the house so this won’t be easy.  Your comments are appreciated!  THANK YOU!


Tonya Hebert, Attorney at Law

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