[WSBAPT] Wrongful death and survival action
Andrekita Silva
ak at seattle-silvalaw.com
Tue Nov 17 17:52:00 PST 2020
Law Office of
F.ANDREKITA SILVA
________________________________________________________________________
.
November 17, 2020
Philip,
I have concerns about taxes to the estate of the decedent ( if IRS
decides this is not decedent's pain and suffering but future lost
earnings),
and potential income taxes to the beneficiaries say a distribution
directly to them is for their own pain and suffering.
If this were you, would you try to figure out for what a jury may have
awarded damages?
The defendants did not say what the settlement was for.
Is it reasonable to pay the net proceeds to the estate so that PR can
distribute (to her and her brother)?
They have received separate advice (they have not disclosed from
whom) that proceeds they receive are not taxable.
I'm not as confident as whoever advised them.
andrekita
Law Office of F. Andrekita Silva
1325 Fourth Avenue, Suite 2000
Seattle, Washington 98101
206-224-8288
www.seattle-silvalaw.com
Quoting Andrekita Silva <ak at seattle-silvalaw.com>:
> Law Office of
> F.ANDREKITA SILVA
> ________________________________________________________________________
>
> .
> November 17, 2020
>
> Philip,
>
> Thank you for your comments,
>
> In our case, we initially sued under the survival statute because
> there were no beneficiaries that qualified under the wrongful death
> statute.
>
> In late July 2019, the wrongful death statute was amended and gave
> the parents a right of action for wrongful death.
>
> We never actually amended the pleadings because we eventually we
> settled and didn't need to.
>
> However, we put all parties on notice that the parents were seeking
> damages pursuant to the wrongful death statute, and all defendants
> did extensive discovery on that issue.
> So, it wasn't a last minute change. But, the settlement didn't say
> what the settlement was for - compensation to deceased for lost
> earnings, compensation to deceased for pain and suffering,
> compensation to beneficiaries for xyz etc.
>
> Can I distribute net proceeds to the Estate ? For PR to distribute
> to beneficiaries?
>
>
>
> andrekita
> Law Office of F. Andrekita Silva
> 1325 Fourth Avenue, Suite 2000
> Seattle, Washington 98101
> 206-224-8288
> www.seattle-silvalaw.com
>
> Quoting "Philip N. Jones" <pjones at duffykekel.com>:
>
>> I suggest that you go back to the original cause of
>> action/complaint, and see what you were suing for. If it was a
>> combination of wrongful death and survivorship (pain and
>> suffering), then it will be difficult to now take the position that
>> it is now 100% one or the other. The IRS is not very friendly
>> towards people who change their tune in order to reduce the taxes.
>>
>>
>>
>> On the tax side, are you referring to income taxes or estate
>> taxes? You need to examine both and be certain of your
>> conclusion. It is my recollection that survivorship proceeds are
>> subject to estate tax, but wrongful death proceeds are not. But
>> check for yourself. And look into the income taxes. My hunch is
>> that no income taxes are owed, but check for yourself to make
>> certain.
>>
>>
>>
>> I express no opinion on your other questions. Find someone who
>> does lots of wrongful death.
>>
>>
>>
>> Phil Jones
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> Philip N. Jones
>>
>>
>>
>> Duffy Kekel LLP
>>
>>
>>
>> 900 S.W. Fifth Ave. Suite 2500
>>
>>
>>
>> Portland, OR 97204
>>
>>
>>
>> pjones at duffykekel.com
>>
>>
>>
>> (503) 226-1371 – office
>>
>>
>>
>> (503) 853-1482 – cell
>>
>>
>>
>> (503) 226-3574 - fax
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> FROM: wsbapt-bounces at lists.wsbarppt.com
>> <wsbapt-bounces at lists.wsbarppt.com> ON BEHALF OF Andrekita Silva
>> SENT: Tuesday, November 17, 2020 4:25 PM
>> TO: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
>> SUBJECT: Re: [WSBAPT] Testamentary Trust
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> Law Office of
>> F.ANDREKITA SILVA
>> ________________________________________________________________________
>>
>> .
>> November 17, 2020
>>
>> List serve,
>>
>> I understand that the proceeds from a wrongful
>> death action do not belong to the estate, rather to the
>> beneficiaries (thank you to Eric Nelsen for a really great summary
>> on this issue earlier this year). I also understand the proceeds
>> from a survival action are more of a muddle. I know there are no
>> taxes for pain and suffering experienced by the decedent for a
>> physical injury.
>> I’d like to close the probate with a Declaration
>> of Completion. Without the survival/ wrongful death action, the
>> estate had extremely modest assets and we settled with all
>> creditors. But, the Declaration of Completion must say all U.S. and
>> Washington estate tax due as a result of Decedent's death have been
>> determined, settled, and paid.
>> So, if we decide that settlement proceeds are for
>> pain and suffering of the decedent, can I assume that this
>> statement about taxes applies to only the Estate? This has
>> nothing to do with any taxes that the beneficiary might owe in
>> their own U.S. state or foreign country?
>> The proceeds from the survival/ wrongful death
>> action are in my trust account. I would prefer to pay the net
>> proceeds to the personal representative for HER to distribute to
>> the beneficiaries (herself and her brother.) They are in agreement
>> as to how much they will each receive. My main concern is to avoid
>> liability for myself if there is a tax issue down the line. Is
>> this okay to do?
>>
>> andrekita
>> Law Office of F. Andrekita Silva
>> 1325 Fourth Avenue, Suite 2000
>> Seattle, Washington 98101
>> 206-224-8288
>> www.seattle-silvalaw.com[1]
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>
>
>
>
>
Links:
------
[1] http://www.seattle-silvalaw.com
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