[WSBAPT] Will/CPA

[Diane J. Kiepe]

Another post much more eloquent then mine - you all are great.

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 Joshua McKarcher
Sent: Tuesday, July 13, 2021 10:56 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Will/CPA

Yes, with respect, I think CP agreements absolutely trump wills primarily but not exclusively pursuant to RCW 26.16.120 (https://app.leg.wa.gov/rcw/default.aspx?cite=26.16.120).

Given the statute's very specific bases for a superior court to set aside a CP agreement, I do not know how a lawyer ethically could submit a probate petition that did not at minimum reference the CP agreement and afford notice to a tax agency, state Medicaid administrator, or other party that would be prejudiced by probate and application of the will vs enforcement of the CP agreement.

That strikes me as a very risky proposition without informing the client in writing of the risks of disregarding the CP agreement. If later discovered - or if used to transfer some assets "easily" before Letters Testamentary are issued, say - the risks could be greater than one estimates. I don't expect a Medicaid recovery or DOR tax examiner will have much sympathy for the "pick your own transfer document" approach.

Also see RCW 11.02.091 (https://app.leg.wa.gov/RCW/default.aspx?cite=11.02.091) including sub (3), which makes CP agreements enforceable without application of requirements for testamentary instruments. I wouldn't want to argue that valid CP agreements may be disregarded when other non-probate transfers may not be.

I am open to citations to statute or case law that make my analysis doubtful. But I have always understood - even from WSBA probate-related CLEs and materials - that CP agreements trump wills (and thus even trusts, to the extent property is not titled to trust and would otherwise pour over to the trust by virtue of a pour over will - because the latter is superseded by the CP agreement).

I view CP agreements, like transfer on death deeds, as very blunt instruments that perhaps should be used only if there are practically ZERO scenarios in which their application would complicate or be more expensive than administration under a thoughtfully drafted will or trust providing for simplicity (e.g., not having to find all the long lost cousins) upon the occurrence of one or more of the crazy scenarios life can present.

Again, I'm open to dissenting views, especially if I've missed other authority.

Best, Josh



Joshua D. McKarcher
McKarcher Law PLLC
537 6th Street
Clarkston, WA 99403
(509) 758-3345
(509) 758-3314 (fax)
josh at mckarcherlaw.com<mailto:josh at mckarcherlaw.com>
www.mckarcherlaw.com<http://www.mckarcherlaw.com>
________________________________
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> <Jeff at bellanddavispllc.com<mailto:Jeff at bellanddavispllc.com>>
Sent: Tuesday, July 13, 2021 3:52:23 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Will/CPA


I do not believe a CPA trumps a Will, it is just another tool in the estate planning process.  If there is a need to use the Will, although the CPA is available, I would probate.   Is there any statute that favors CPA over Wills?



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/>

The information contained in this e-mail message may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any dissemination, distribution, or copying is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at info at bellanddavispllc.com<mailto:info at bellanddavispllc.com>  or call 360.683.1129.





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 3:44 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Will/CPA



The SNT in the will is optional and can be elected by the PR who is not he surviving spouse. If no needfor Medicaid all goes to surviving spouse in which case we would use the CPA. If there is a need the PR uses his discretion to set up SNY and we would disregard the CPA.



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



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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/>

The information contained in this e-mail message may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any dissemination, distribution, or copying is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at info at bellanddavispllc.com<mailto:info at bellanddavispllc.com>  or call 360.683.1129.





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.

4505 Pacific Hwy. E., Suite A

Tacoma, WA 98424

T: (253) 922-8724

F: (253) 922-2802

www.LuceLawFirm.com<http://www.lucelawfirm.com/>  [e943ecc8-5be2-4768-a17e-1b829b908afe] <https://www.facebook.com/pages/Luce-Kenney-Associates-PS/200703820101348>



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