[WSBAPT] Life Insurance Designation to Minor Son / Motion for Determination of Probate Asset?

Tue Apr 9 10:13:24 PDT 2019

First, the argument that he signed the POA while the husband was incompetent seems to be your best argument and if supported by H's doctors, should invalidate anything signed.

Second, the changing of a beneficiary on life insurance policy:  After the passing of the WA Uniform Power of Attorney Act (RCW 11.125), my new POA form has a provision that the person signing the POA must initial when certain rights are being granted to the designated agent.  One of these is for changing of beneficiary designations.  I'm sure you have reviewed the POA signed but might take another look.  Here is what ours states and if not initialed, not valid for beneficiary designation changes:

Optional Specific Powers.  My spouse, while acting as my Attorney-in-Fact, may exercise all of the powers below. In addition to the general power provided above, I give my alternate Agent on the specific powers below, that I have identified by placing my initials on the line proceeding that power. The absence of my initials indicates that my alternate Agent shall not have the listed power.

_________      To create, amend, revoke or terminate an inter vivos trust;
_________      To make one or more gifts, consistent with RCW 11.125.390(3), in an amount per donee which exceed the annual dollar limits of the federal gift tax exclusion under internal revenue code section 2503(b), 26 U.S.C Sec. 2503(b), as amended;
_________      To create or change rights of survivorship;
_________      To create or change a beneficiary designation;
_________      To waive my right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under retirement plan;...

Third, even if the above arguments fail, you indicate the wife needs the monies to support her son.  The monies in the blocked account could be set up to support the son's needs and a guardian ad litem should be used for this purpose and assist in determination of what the funds might be used for.

Dalynne Singleton

Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street / PO Box 1091
Snohomish, WA 98291

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dalynne at glgmail.com<mailto:dalynne at glgmail.com>

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Hillary Dawn
Sent: Monday, April 08, 2019 5:27 PM
To: KCBA Real Property, Probate and Trust Law Discussion List <realpropertyprobatetrustlaw at lists.kcba.org>; WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Motion for Determination of Probate Asset?

I'm wondering if anyone has any insight/exemplars they would be willing to share.

H and W were married for ~ 20 years with one child (16). For the last year they were physically separated but not legally separated and dissolution proceedings were not started. H died after a brief illness and W opened probate. There are some other nightmares we are dealing with (H's brother got him to sign DPA and will when he likely was not competent, then changed his beneficiary designations). Most assets are not a problem, as they are pretty clearly community or separate. The big issue is a life insurance policy around $250,000. The beneficiary was 100% W, but during his illness H's brother used his DPA to change the beneficiary to 100% to the minor son. W has no funds and is struggling to support her son. We believe at least 1/2 of the life insurance proceeds should be hers as her interest in the community property, and have found case law to support that. Unfortunately, the life insurance company firmly states they will only disburse the funds to the son in a blocked account.

I am thinking we should petition the court for a determination as to the proper distribution scheme of the funds, and an order directing the life insurance company to pay out according to that. Has anyone else done anything similar or have a better tactic?

Much appreciated!

Hillary L. Dawn
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Hillary L. Dawn
Attorney at Law
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Auburn, WA 98002
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