[WSBAPT] wrongfully excluded heir

Thu Jan 10 11:04:17 PST 2019

An assignment would be a taxable gift, but (as has been noted) a gift is not really taxable unless the donor has enough assets to be subject to the federal estate tax.  But watch out for a spendthrift/nonassignment clause.  Which leads us to TEDRA.
A transfer pursuant to a TEDRA would also be a gift unless is it backed up by a bona fide enforceable cause of action.  If a bona fide dispute exists between the beneficiaries, and the agreement is intended to resolve that dispute, then the resulting transfer will not constitute a gift, but instead will constitute a settlement in satisfaction of the dispute.  In such a situation, the agreement should recite the nature of the dispute and the fact that the altered division of the property is intended to resolve that dispute.  For somewhat greater certainty that the result will be honored by the IRS, the aggrieved beneficiary should first file a will contest, a petition for instructions, an objection to the final account, or some other appropriate pleading to lend greater credence to the notion that a bona fide dispute exists.  However, neither the IRS nor the courts will respect a settlement based on “friendly” litigation where no bona fide dispute is present.  For example, in Grossman v. Campbell, 368 F.2d 206, 18 AFTR2d 6251 (5th Cir. 1966), the court held that a settlement agreement had been reached in a situation where no real dispute existed, and thus the settlement would be ignored for estate tax purposes.  The Ninth Circuit reached a similar result in Commissioner v. Vease, 314 F.2d 79, 11 AFTR2d 1800 (9th Cir. 1963), rev’g. 35 T.C. 1184 (1961).  In that case, the court concluded that a settlement agreement had not resulted from a bona fide will contest, but instead had resulted from “nothing more than a voluntary rearrangement of property interests acquired under an admittedly valid will.”  See also Wolfsen v. Smyth, 223 F.2d 111 (9th Cir. 1955); Bath v. Commissioner, T.C. Memo 1975-102.  Other examples of settlements or trust modifications that were disregarded for tax purposes include Aronson v. Commissioner, T.C. Memo 2003-189; Brandon v. Commissioner, 86 T.C. 327 (1986), rev’d on other grounds, 828 F.2d 493 (8th Cir. 1987), on remand 91 T.C. 829 (1988); Simpson v. Commissioner, T.C. Memo 1994-259; Crown Income Charitable Fund v. Commissioner, 8 F.3d 571 (7th Cir. 1993); La Meres v. Commissioner, 98 T.C. 294 (1992); CCA 201651013; see also Rev. Rul. 89-31, 1989-1 C.B. 277.

Phil Jones
Portland, OR

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Christopher Sm
Sent: Thursday, January 10, 2019 10:44 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] wrongfully excluded heir

Could you do a partial assignment of interest? Or is that treated as a gift?

Cheers,

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

Legal stuff I have to put in... To ensure compliance with Treasury Department and IRS regulations, we inform you that, unless expressly indicated otherwise, any federal tax advice contained in this communication (including any attachments) is not intended or written by CMS Law Firm LLC to be used, and cannot be used by the taxpayer, for the purpose of: (i) avoiding penalties that may be imposed on the taxpayer under the Internal Revenue Code; or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein (or any attachments).

On Thu, Jan 10, 2019 at 10:42 AM Eric Nelsen <Eric at sayrelawoffices.com<mailto:Eric at sayrelawoffices.com>> wrote:
Lots of tax implications if it's done by any method other than inheritance. I have done the heirs-gift-to-excluded-child method but only where the individual gifts were below the federal annual gift exclusion limit (currently $15,000, but lower back when I did this in a case).

I think best bet on your facts, assuming there isn't a fact problem I don't know about, is a TEDRA Agreement executed by all heirs, indicating that the Will should be reformed because its provision concerning the excluded sibling is in dispute, that everyone agrees that the true intent of the testator was to provide equal benefit to all children, that the testator made a mistake of fact in excluding the sibling (not realizing that the expected benefit was not received or was not certain to be received), and that but for that mistake, the testator would have included all children as equal heirs. And therefore, the heirs all agree that the Estate should be split in equal shares. That way everyone gets the distribution as inheritance and the tax implications go away.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>] On Behalf Of Allen Draher
Sent: Thursday, January 10, 2019 10:14 AM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] wrongfully excluded heir

I’m meeting with a potential client.  She is the named PR in parent’s will.  Estate passes to all but one sibling.  This sibling was excluded because of some benefit to be received that wasn’t and all other siblings want to divide estate among all siblings.  Each share will be several hundred thousand dollars, but estate will be under WA State Estate Tax limit.  I suppose each sibling could gift to the excluded sibling and file Federal Gift Tax Returns.  With the current federal exclusion amounts not likely to be an issue using some of the existing credit, but who knows what the future will bring.  Has anyone a more creative solution they’ve used?  Have excluded sibling file a creditor’s claim that is approved by the PR with non-intervention powers?  (I would have other siblings consent in writing).  TEDRA?  Thank you.

Allen Draher

Law Office of Allen Draher, PLLC
5426 California Ave. S.W.
Seattle, WA 98136

ph   206-935-2998
allen at draherlaw.com<mailto:allen at draherlaw.com>

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