[WSBAPT] probating Will w Testamentary trust

Mon Apr 5 11:27:56 PDT 2021

Thanks Phil. The trust for child is a testamentary trust. The parent’s RLT appears to be well funded and pours over child’s share to testamentary trust (e.g. backwards from the usual scheme). No apparent other assets  to probate.  I suspect drafting attorney confused requirements for SNT for surviving spouse (which needs to be testamentary according to the rules but otherwise seems illogical to me) with that of discretionary 3rd party trust for benefit of non-spouse (which can be either testamentary or inter vivos).

I’d heard of attorneys drafting pour over trusts to fund testamentary SNT for spouse for those couples who’d moved from probate adverse states with fully funded RLTs. However, I wasn’t sure of the mechanics of actually establishing/funding the testamentary trust (i.e whether filing Will was enough). Thinking out loud, if there are no probate assets, or a WD claim,  I am not sure there is even subject matter jurisdiction for a probate proceeding. Thanks again for your thoughts, Cy

Cyrus W. Field, Attorney at Law (admitted in Washington and Oregon)

phone: 360-472-1223 Mail: POB 367, Shaw Island, WA 98286 Office: 640 Mullis St. Friday Harbor, WA

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Philip N. Jones
Sent: Saturday, April 3, 2021 4:25 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] probating Will w Testamentary trust

I normally think of a testamentary trust as one created by a will.  In your situation, you have a trust to be created by an RLT.  If all of the assets are in the RLT, then the trustee of the RLT has the full ability to fund the new trust.  I don’t see how the probate of the will is necessary or even relevant.  After all, one of the primary purposes of an RLT is to avoid probate.  If all of the assets are in the RLT, you have avoided probate. 

On the other hand, if not all of the assets are in the RLT, and some of the assets are in the testator’s name without beneficiary designations, then you need to probate the will, which is presumably a pourover will.  You will need to probate the will in order to fully fund the RLT.  But that has little to do with funding the new trust.  The trustee of the RLT can fund the new trust with the stroke of a pen.  He is fully authorized to do so.

Phil Jones

Portland, OR

Philip N. Jones 

Duffy Kekel LLP

Portland, OR

pjones at duffykekel.com <mailto:pjones at duffykekel.com> 

(503) 853-1482 cell

On Apr 2, 2021, at 2:19 PM, Cyrus Field <cyfield at rockisland.com <mailto:cyfield at rockisland.com> > wrote:

Folks- I am reviewing an E/P whereby RLT calls for assets to “pour over” to a testamentary discretionary spendthrift trust for an adult child. Not sure why discretionary trust wasn’t part of RLT, instead of Will, but at this point Trustor may not have ability to amend her estate plan. 

My question is, if probate is not otherwise required,  whether Will has to be probated to fund the testamentary trust?  I was thinking Will just needs to be filed, instead, but its Friday and I could use a reality check. Thanks in advance, Cy 

Cyrus W. Field, Attorney at Law (admitted in Washington and Oregon)

phone: 360-472-1223 Mail: POB 367, Shaw Island, WA 98286 Office: 640 Mullis St. Friday Harbor, WA

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