[WSBAPT] Trust with Irrevocable Beneficiary Question

Wed Oct 9 08:47:57 PDT 2019

This is a typical Living trust/split at death of first trust.  Many times in this situation, the survivor may have a power of appointment amongst descendants over the “irrevocable trust”  to consider just this type of thing.  Additionally, I have used TEDRA in not the same factual case but similar desire for a wayward child – we discuss with the child or his/her agent that surviving spouse can change his/her trust distribution and is considering doing so to  leave only to two children unless all parties can come to an agreement on how all 3 can share and how child’s 3 share should go (for example if felon has children or family on the outside).  I would be happy to chat with you if you wanted.  Also, check out the new decanting RCW see if there may be help there.

Best of luck,

Diane J. Kiepe

Diane J. Kiepe
Douglas Eden
717 W. Sprague Ave.
Suite 1500
Spokane, WA  99201
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>
509-455-5300

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Kirsten Samwel
Sent: Tuesday, October 8, 2019 6:02 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Trust with Irrevocable Beneficiary Question

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<mailto:kirstensamwel at gmail.com>

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