[WSBAPT] Trust with Irrevocable Beneficiary Question

[Kirsten Samwel]

Listmates -

PC came in with a Trust signed in 1992.  H has passed, and W is surviving
Settlor/Trustor/Trustee.  The Trust has three children who are
beneficiaries upon death of W.  It recently came to light that one of the
children committed a murder that was proven by DNA evidence.  Since this
child will likely be spending the rest of their life in prison, W wants to
limit how much that child receives.  As it stands, the trust is set to
split 33 and 1/3% to each child.

The problem that I see is this:  there is a paragraph that seems to make
the beneficiaries irrevocable.  The pertinent language is:
"Irrevocability: Except as otherwise provided in the Declaration, on the
death of either Settlor, the designation of beneficiaries of specific gifts
in the trusts created by the Declaration shall become irrevocable and not
subject to Amendment or Modification for the separate property of the
deceased Settlor and one-half of the community and joint property. (The
Surviving Settlor retains the rights to amend or modify the designation of
beneficiaries and distribution only as to his or her own separate property
and his or her one-half interest in community and jointly held property)".

My reading of that indicates she can amend the trust in regard to her half
of what is in the trust (since I believe that everything is
community/joint), but the child she wishes to change the amount for would
still be entitled to 33 and 1/3 of the H's half of the community/joint
property.   She wishes to leave him a sum certain rather than a percentage.

My question is this:  I can see that she cannot remove a beneficiary
completely.   Could she change the percentages, such as give two kids 49%
each and the one in prison 2%, or could she give the one child a sum
certain that comes off the top and then split the remainder 50/50 between
the other kids?  I suspect that she can do this, but I am not sure (I'm
still figuring all the ins and outs of Trusts out), but I also suspect that
she could leave him 0% but that he would still get 33 and 1/3 of her
deceased husband's half of the joint estate.  Any clarification on my
thinking, or even a you are thinking along the right way would be truly
appreciated.  If anyone knows a way to leave the child in prison out except
a sum certain, I would appreciate being pointed in the right direction or a
statue or to some case law or something that would help me do that.  Thanks
to all in advance for your help.  Have a good evening.

Kirsten A. Samwel
Attorney at Law
Samwel Cousineau, PC
700 W. Evergreen Blvd.
Vancouver, WA  98660
Ph:  (360)750-3789
Fax:(360)750-3788
kirstensamwel at gmail.com




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10/08/19,
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