[WSBAPT] Incorporation by Reference

Wed Jul 3 12:53:47 PDT 2019

Although I am not a tax expert, it is my understanding that a power of
appointment includes the property int the estate of the power holder.

                Steve

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>
On Behalf Of Eric Nelsen
Sent: Wednesday, July 3, 2019 11:41 AM
To: 'wsbapt at lists.wsbarppt.com' <wsbapt at lists.wsbarppt.com>; KCBA Real
Property, Probate and Trust Law Discussion List
<realpropertyprobatetrustlaw at lists.kcba.org>
Subject: Re: [WSBAPT] Incorporation by Reference

Rules of construction applicable to Wills also apply to Trusts. RCW
11.97.020. It's not possible to incorporate a document that is not in
existence at the time the Will is executed, RCW 11.12.255, with the limited
exception of the tangible personal property gift list authorized under RCW
11.12.260.

It might be arguable whether such incorporation is a "rule of construction"
under RCW 11.97.020, but the identification of beneficiaries is so
fundamental to the purpose of a Will (or Trust) that I wouldn't bet on a
court allowing designation of beneficiaries in a writing created later. To
allow such a thing would basically evade all the procedural safeguards that
are supposed to protect against fraud, undue influence, etc. As well, it's
fundamental to the creation of a Trust that the beneficiaries be named or
described in a fashion that allows ascertainment of the beneficiaries.

It might be possible to give the Executor a general power of appointment, or
a special power of appointment limiting the beneficiaries to a specific pool
of people. Compare In re Long's Estate, 190 Wash. 196, 67 P.2d 331 (1937)
(invalidating Will for failure to name specific beneficiaries), and In re
Lidston's Estate, 32 Wn.2d 408, 202 P.2d 259 (1949) (affirming testator's
grant of power of appointment to Executor to determine who is to receive
residue of estate). That's not precisely the same result since the Executor
would have discretion to determine how much to give each beneficiary, but it
might get close to the client's goal. And, the special power of appointment,
if that were the method, would have to name the beneficiaries in the Will or
Trust at the time it was executed--so maybe that's not going to work either.

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] On Behalf Of Heather de Vrieze
Sent: Wednesday, July 03, 2019 10:18 AM
To: 'wsbapt at lists.wsbarppt.com'; KCBA Real Property, Probate and Trust Law
Discussion List
Subject: [WSBAPT] Incorporation by Reference

Clients request the darndest things. "Just make up my Will without naming
beneficiaries and have it say that I will leave my executor a list of
beneficiaries. I want to be able to change that list anytime."

In Wills it is clear that we can incorporate by reference any document
existing at the time of making the Will by sufficient reference to the
document in the Will. I would not attempt to have the Will incorporate a
possible later created document, except as it relates to tangible personal
property disposition.

Is there any reason to believe that such incorporation by reference of a
later created document be OK in a Trust?

Any cites?

Heather

Heather S. de Vrieze
Attorney-at-Law

3909 California Avenue SW

Seattle, WA 98116-3705                          

(206)938-5500 

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