[WSBAPT] Virtual Representative lack of conflict under RCW11.96A.120

[Philip N. Jones]

Yes, it is a loss to the grandchildren.  But the question was whether their father has a conflict of interest.  Their father is getting nothing.  In fact, their father is losing, too.  So I believe that there is no conflict.  In fact, the father’s loss is certain, but the grandchildren’s loss is a bit remote and contingent, as the original post stated.
So what is the solution to addressing the remote/contingent loss the grandchildren are about to experience?  Give them some money out of the trust?  I would think that that amount would need to be small.  Or just skip the money and do as father and grandfather wish?  To repeat myself, father is the real loser.
Perhaps the solution is to let the client decide.  If father is the client, explain to him the (small) risks and let him decide.  But apparently grandfather is the client.  So maybe the son needs an attorney, more so than the grandchildren, since the son is the one who will certainly and definitely lose.
So now I am starting to repeat myself again.  This is a very common conundrum when modifying trusts or entering into TEDRA agreements or (down here in Oregon) nonjudicial settlement agreements.  Comes up all the time.  Often the solution is to explain everything and let the client decide.  Oftentimes, clients do not need to be told what to do.  They just need to know the pros and cons, and then they will decide.  And then the attorney can document his/her file and move on.
Phil Jones

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Roger Hawkes
Sent: Wednesday, April 03, 2019 5:51 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Virtual Representative lack of conflict under RCW11.96A.120

The son plans to take action that would effectively disinherit his kids from grampa’s assets.  The loss of chance is a real loss to those grandkids.  I think they need a true representative.

Roger Hawkes, WSBA 5173
Hawkes Law Firm, P.S.
19944 Ballinger Way NE, Suite #100
Shoreline, WA 98155
www.hawkeslawfirm.com<http://www.hawkeslawfirm.com/>
206 367 5000 Office
206 367 4005 Fax



From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Josh Grant
Sent: Wednesday, April 3, 2019 4:07 PM
To: wsbar trust <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Virtual Representative lack of conflict under RCW11.96A.120

My grantor client provided for his son to be beneficiary of a trust.  The son now has four adult children who are competent.  If the son died before the trustor, the proceeds would go to the issue of son.  The son now wishes to sign a TEDRA agreement whereby the assets can be distributed to the Trustor who is experiencing medical costs.  I think the son can sign it as the virtual representative of his 4 children because of the following, but why is this not a conflict of interest between dad and his kids (who of course would probably never see a benefit because dad will probably outlive the grantor)?


RCW 11.96A.120(7) provides: (7) Where an interest has been given to a living person, and the same interest, or a share in it, is to pass to…  persons who are, or might be, the… , issue, or the distributes of that living person upon the happening of an additional future event, … that living person may virtually represent the …issue .. of the person, but only to the extent that there is no conflict of interest between the representative and the person(s) represented with regard to the particular question or dispute.”
Joshua F. Grant
[advocates]
P. O. Box 619
Wilbur, WA 99185
509 647 5578
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