[WSBAPT] Surviving Spouse of Intestate Heir signing on behalf of estate without probate

Thu Feb 6 11:44:33 PST 2020

Hi,
I don’t see why you would need a disclaimer or an Indiana probate.
At this point, it appears that the decedent’s brother-in-law – who is entitled to inherit the decedent’s estate under Washington and Indiana law – is willing to allow the decedent’s surviving partner to inherit.
The simplest approach would be for the BIL to gift the decedent’s estate to the survivor. The only hiccup I see is that the BIL might be hesitant to file a Form 709 with the IRS – which would be required if the inheritance is valued at more than $15,000. (In addition, there could potentially be unanticipated Indiana inheritance/gifting issues).
If the BIL objects to filing a 709, I would likely draft a TEDRA in which BIL – in light of the potential litigation over the status of assets, etc., and the resulting uncertain value of his inheritance – assigns his interest in the estate to the survivor, thereby reducing the estate’s value for gift tax purposes.
Hope this helps,
John

John Creahan
www.cairn-law.com<http://www.cairn-law.com/>
206-578-5877
Fremont office:
3417 Evanston Ave. N, Suite 312
Seattle, WA 98103

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Kristen Fisher
Sent: Wednesday, February 5, 2020 2:46 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Surviving Spouse of Intestate Heir signing on behalf of estate without probate

I think you need to consider that if the sister’s estate disclaims, the Decedent’s estate passes to the next intestate heirs. Neither the sister’s estate, nor the sister’s husband, can disclaim on behalf of the other intestate heirs, even if you have not yet identified who those people are. Undoubtedly, there is at least a cousin out there somewhere.

The only way that I think of to accomplish the result the partner desires would be for decedent’s estate to be distributed to the sister’s estate, the sister’s estate to distribute decedent’s estate to sister’s husband and then sister’s husband would have to make a gift to the decedent’s partner. Also consider that the partner may also an independent claim to community-like assets as well.

Kristen Fisher, Attorney
Ridgway Law Group
701 Fifth Avenue, Suite 4640
Seattle, WA  98104 - 7073
Tel: 206.838.2501
Fax 206.839.5702
email: kristen at ridgwaylawgroup.com<mailto:kristen at ridgwaylawgroup.com>

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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 Julie Martiniello
Sent: Wednesday, February 05, 2020 2:18 PM
To: Trust and Probate Section <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Surviving Spouse of Intestate Heir signing on behalf of estate without probate

Hello All,

I have a first time situation on my hands and am hoping someone on this list has some guidance they could provide.

Decedent passed away intestate, leaving a (unmarried) partner. Decedent's sister is technically his only heir. His sister lived in Indiana and passed away 1 month after Decedent, so her estate is now the heir. She was survived by her husband and had no children. According to Indiana law, surviving spouse is sole heir of the sister's estate.

Surviving partner has been with Decedent for over 20 years. The surviving spouse of Decedent's sister has agreed to the appointment of Partner as PR and has also agreed that Partner should be entitled to all of Decedent's assets. He is willing to cooperate in that he will sign off on agreements to this effect.

The issue is that in Indiana, the surviving spouse does not need to open a probate for Decedent's sister. Can the sister's surviving spouse sign waivers, a TEDRA agreement, and/or consent to the distribution of the property to my client as the sole heir of the sister's estate without her probate being opened?

While, surviving spouse is happy to help with the process to some extent, I do not foresee that he would want to go as far as opening a probate in Indiana for this.

I have been toying with the correct way to go about this. If I do get the surviving spouse to sign off on everything, I am thinking that instead of doing a NJBA, I would submit a TEDRA agreement to the court for approval given that there is no probate for the sister. I just have never encountered this issue before, so any advice or direction would be appreciated! Thank you in advance for any insight!

--
Respectfully,

JULIE A. MARTINIELLO | PARTNER | DIMENSION LAW GROUP PLLC
130 Andover Park East, Suite 300 | Tukwila, WA 98188
t: 206.973.3500 | f: 206.577.5090| e: JULIE at dimensionlaw.com|<mailto:JULIE at dimensionlaw.com|> www.dimensionlaw.com<http://www.dimensionlaw.com/>

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