[WSBAPT] PR duty as to Will beneficiary on State assistance

[Candace Wilkerson]

Hi Michael,

I have seen the PR initiate the process of petitioning the court for the special needs trust to be established, and I’ve also seen an attorney for the beneficiary petition the court to do so (thereby making the beneficiary bear the costs of establishing the trust).  If there is a GAL appointed in the probate estate on behalf of the beneficiary, the GAL could recommend that the SNT be established for the beneficiary.

Let me know offline if you’d like my experience with this.

Candace Wilkerson


From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of michael at westseattleattorney.com
Sent: Monday, September 9, 2019 3:35 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] PR duty as to Will beneficiary on State assistance

Hi: WA probate and one child is in CA. Thanks

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-------- Original Message --------
Subject: Re: [WSBAPT] PR duty as to Will beneficiary on State assistance
From: Candace Wilkerson <cwilkerson at wongfleming.com<mailto:cwilkerson at wongfleming.com>>
Date: Mon, September 09, 2019 3:05 pm
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
I am licensed in CA, but haven’t done special needs trusts there.  Is the probate estate filed in WA?  I have been involved in more than one WA probate in which a special needs trust (first-party) was established by the court before distribution to a beneficiary with a disability.  So, even though the beneficiary’s interest may have vested, it’s not too late to establish the SNT before distribution.

Candace Wilkerson

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Diane J. Kiepe
Sent: Monday, September 9, 2019 1:35 PM
To: WSBA Probate & Trust Listserve <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] PR duty as to Will beneficiary on State assistance

Some states (and I think CA but disclosure – I’m not licensed there) would consider the interest vested for determining if the trust were “self-settled” or “third-party trust” where the testamentary document does not put the money into trust by the testamentary document’s terms but is put there by either a process like TEDRA or by Court Order (I believe CA has a court process).  The goal is to not disqualify the beneficiary but at the same time require formalities to be recognized.  As such some states allow the process to pass from estate to trust but (absent SNT language) consider the Trust a self- settled trust.  As you likely know the self-settled is subject to estate recovery.

Best of luck,

Diane J. Kiepe

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of michael at westseattleattorney.com<mailto:michael at westseattleattorney.com>
Sent: Monday, September 9, 2019 12:45 PM
To: WSBA Probate & Trust Listserve <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] PR duty as to Will beneficiary on State assistance

Does PR have a duty to not give inheritance to decedent's child who is on state aid (CA) and or have the funds to go to a special needs trust?  Further,  once the father has died did the money vest in the child and therefore its too late to put into a special needs trust?
Thanks
Mike

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