[WSBAPT] Will/CPA

[Diane J. Kiepe]

Sarah,

I agree with the contract conclusion and that it isn’t a take it or leave it tool.  That was said much better than my post stating that the CPA trumps the Will.  Trump may have been a bad word.  Because it’s a contract that takes effect on a death of one person there is nothing in the probate estate unless it is a CPA that only goes to character of property (not how it vests).  I rarely see these.

I have been using CPAs for certain plans (all goes to first spouse on death) and where Medicaid qualification is unlikely (due to pension/ss or whatever) or where the parties acknowledge they want to use all their funds as they  have for their best care and Medicaid only if absolutely necessary.  With that being said, the some comments here certainly have given me food for thought.

Diane J. Kiepe

Diane J. Kiepe
Douglas Eden
717 W. Sprague Ave.
Suite 1500
Spokane, WA  99201
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>
509-455-5300

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Sarah McCarthy
Sent: Tuesday, July 13, 2021 7:54 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Will/CPA

Here are 2 cents from a less seasoned player in this field than most of you:

A CPA is a contractual commitment as to how assets will vest after the first spouse’s death. I don’t view it as something a surviving spouse can simply discard if it winds up not being the best method of handling things after the first spouse’s death. For this reason it’s a tool that I don’t employ unless it’s clear that absolute vesting to surviving spouse on death is the only desired outcome. I do see it as trumping the will.

Though I am aware that some attorneys prepare these as an optional tool, and advise surviving spouses to choose whether or not to take under a CPA, depending on the circumstances after the first spouse’s death. I personally don’t agree with this approach. Either the spouses make a contractual commitment, or they don’t.

The CPA can however be drafted to permit revocation by a single spouse after one spouse’s incapacity (as may be needed for Medicaid or tax planning purposes), as well as an option for disclaimer by surviving spouse, which affords additional flexibility.

Sarah

Sent by dictation from my iPhone. Please excuse typos and missing punctuation!


On Jul 13, 2021, at 4:15 PM, Roger Hawkes <Roger at law-hawks.com<mailto:Roger at law-hawks.com>> wrote:

One of the main reasons not to do a cpa is the inability to do any sort of complex planning, like trusts etc.

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: Tuesday, July 13, 2021 3:34 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Will/CPA

Ken,

If the SNT in the Will is for the surviving spouse, the CPA will be problematic.  The CPA, if not revoked in any way, will trump the Will.  I sense I may either be reading your note below wrong or missing a fact.

Happy to send you a direct e-mail with some additional information.



Diane J. Kiepe

Diane J. Kiepe
Douglas Eden
717 W. Sprague Ave.
Suite 1500
Spokane, WA  99201
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>
509-455-5300

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 Ken Luce
Sent: Tuesday, July 13, 2021 3:17 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Will/CPA

Concern is with CPA it eliminates provisions in their will for SNT

kl

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 Jeff at bellanddavispllc.com<mailto:Jeff at bellanddavispllc.com>
Sent: Tuesday, July 13, 2021 2:47 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Will/CPA


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Ken,

I would use what is most beneficial for the situation.  Is there a surviving spouse?  If so, wouldn’t the cpa be easier and avoid probate?  What is the issue probating the Will(s).

Jeff

W. Jeff Davis
BELL & DAVIS PLLC
P.O. Box 510
720 E. Washington Street, Suite 105
Sequim WA 98382
Phone: (360) 683.1129
Fax: (360) 683.1258
email: jeff at bellanddavispllc.com<mailto:jeff at bellanddavispllc.com>
www.bellanddavispllc.com<http://www.bellanddavispllc.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 Ken Luce
Sent: Tuesday, July 13, 2021 2:33 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Will/CPA

At time of death with will and cpa is it mandatory the cpa be used? Both wills are identical.

Ken Luce
Luce & Associates, P.S.
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