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

Fri Feb 7 11:21:38 PST 2020

Thank you for all the thoughtful responses. I have researched CIRs and
inheritance rights and came to the same conclusion as Eric, which is why I
was thinking it would be ideal to settle this "out of court". The other
issue for this case in particular is that the main asset was purchased 40
years ago, so classifying it as "community" or having the Partner make a
successful claim to it is not so straightforward. I am afraid a petition to
establish the CIR interest in this asset will not get the result we desire,
even with the beneficiary's assistance, as James had acknowledged. This
discussion has given me some options and issues to bring up with the client
and we can dig into other possible heirs too. I like Kristen's suggestion
and will look into other family members that could be an issue, but I do
not think the sister's husband is really disclaiming the estate's interest.
Rather he is agreeing that equitably and as John pointed out, to avoid
litigation, the estate should be distributed to the surviving partner.
Though as James said, even if we characterize it that way, the "cousin"
could come in and view it as a disclaimer. I will be sure to have a CYA
letter the client signs off on no matter the route chosen.

One of the reasons I was wanting it in the court record/ordered by the
court is so that if the partner decided to sell the property later, title
would be able to see why it was going to someone that is not an "heir" in
the court record. I guess that could be done by simply filling the
agreement in the court record though.

I too would like to see a case establishing the inheritance rights of
surviving partner under CIR. Thank you again to all who responded.

On Thu, Feb 6, 2020 at 11:48 AM John Creahan <john at cairn-law.com> wrote:

> 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
> 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
>
>
>
>
>
> The information contained in this e-mail communication and any attached
> documentation may be privileged, confidential or otherwise protected from
> disclosure and is intended only for the use of the designated recipient(s).
> If the reader or recipient of this communication is not the intended
> recipient, or an employee or agent of the intended recipient who is
> responsible for delivering it to the intended recipient, you are hereby
> notified that any review, dissemination, distribution, copying or other use
> of this communication is strictly prohibited. If you have received this
> communication in error, please immediately notify us by return e-mail and
> promptly delete the original electronic e-mail communication and any
> attached documentation. Receipt by anyone other than the intended recipient
> is not a waiver of any attorney-client or work-product privilege.
>
>
>
> *From:* wsbapt-bounces at lists.wsbarppt.com <
> 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>
> *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|
> www.dimensionlaw.com
>
>
>
>
>
> PRIVILEGED AND CONFIDENTIAL:  This e-mail (including any attachments) is
> intended only for the use of the individual or entity named above and may
> contain privileged or confidential information. If you are not the intended
> recipient, or the employee or agent responsible to deliver it to the
> intended recipient, you are notified that any review, dissemination,
> distribution or copying of this e-mail is prohibited. If you have received
> this e-mail in error, please immediately notify us by e-mail, facsimile, or
> telephone; return the e-mail to us at the e-mail address below; and destroy
> all paper and electronic copies.
>
>
> PRIVILEGED AND CONFIDENTIAL:  This e-mail (including any attachments) is
> intended only for the use of the individual or entity named above and may
> contain privileged or confidential information. If you are not the intended
> recipient, or the employee or agent responsible to deliver it to the
> intended recipient, you are notified that any review, dissemination,
> distribution or copying of this e-mail is prohibited. Attempts to intercept
> this message are in violation of 18 USC 2511(1) of the Electronic
> Communications Privacy Act, which subjects the interceptor to fines,
> imprisonment and/or civil damages. If you have received this e-mail in
> error, please immediately notify us by e-mail, facsimile, or telephone;
> return the e-mail to us at the e-mail address below; and destroy all paper
> and electronic copies. Any settlement offer contained herein is made
> pursuant to Washington ER 408, and without admitting fault or liability on
> the part of this firm’s client(s) or its agents.  IRS CIRCULAR 230
> DISCLAIMER:  To ensure compliance with requirements imposed by the IRS, I
> inform you that any U.S. tax advice contained in this communication
> (including any attachments) is not intended or written to be used, and
> cannot be used, for the purpose of (i) avoiding penalties under the
> Internal Revenue Code; or (ii) promoting, marketing or recommending to
> another party any transaction or tax-related matter addressed herein.
> ***Disclaimer: Please note that RPPT listserv participation is not
> restricted to practicing attorneys and may include non-practicing
> attorneys, law students, professionals working in related fields, and
> others.***
> _______________________________________________
> WSBAPT mailing list
> WSBAPT at lists.wsbarppt.com
> http://mailman.fsr.com/mailman/listinfo/wsbapt

-- 
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*@dimensionlaw.com*|
www.dimensionlaw.com

PRIVILEGED AND CONFIDENTIAL:  This e-mail (including any attachments) is
intended only for the use of the individual or entity named above and may
contain privileged or confidential information. If you are not the intended
recipient, or the employee or agent responsible to deliver it to the
intended recipient, you are notified that any review, dissemination,
distribution or copying of this e-mail is prohibited. If you have received
this e-mail in error, please immediately notify us by e-mail, facsimile, or
telephone; return the e-mail to us at the e-mail address below; and destroy
all paper and electronic copies.

-- 
PRIVILEGED AND CONFIDENTIAL:  This e-mail (including any attachments) is 
intended only for the use of the individual or entity named above and may 
contain privileged or confidential information. If you are not the intended 
recipient, or the employee or agent responsible to deliver it to the 
intended recipient, you are notified that any review, dissemination, 
distribution or copying of this e-mail is prohibited. Attempts to intercept 
this message are in violation of 18 USC 2511(1) of the Electronic 
Communications Privacy Act, which subjects the interceptor to fines, 
imprisonment and/or civil damages. If you have received this e-mail in 
error, please immediately notify us by e-mail, facsimile, or telephone; 
return the e-mail to us at the e-mail address below; and destroy all paper 
and electronic copies. Any settlement offer contained herein is made 
pursuant to Washington ER 408, and without admitting fault or liability on 
the part of this firm’s client(s) or its agents.  IRS CIRCULAR 230 
DISCLAIMER:  To ensure compliance with requirements imposed by the IRS, I 
inform you that any U.S. tax advice contained in this communication 
(including any attachments) is not intended or written to be used, and 
cannot be used, for the purpose of (i) avoiding penalties under the 
Internal Revenue Code; or (ii) promoting, marketing or recommending to 
another party any transaction or tax-related matter addressed herein. 
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20200207/49c5992f/attachment.html>