[WSBAPT] trust queston

[Nicholas Pleasants]

I don't think that RCW 11.98.008(1) gives the PR unilateral authority to create a trust over a beneficiary's share. That statute is just explaining that a trust can be created by a Will. A trust for someone with borderline capacity is really something that should be explicitly stated in the Will. The PR needs to be careful about the beneficiary's due process rights.
In my Wills and Trusts, we have a definition section that defines incapacity as anytime two physicians opine that the beneficiary cannot manage his affairs. But to prove capacity, the PR can require the beneficiary to produce two letters from physicians that he can manage his affairs, and if the beneficiary refuses to produce two letters of capacity, then the PR can treat them as incapacitated.
If you are stuck here, the best course of action may be to Petition the court for appointment of a guardian ad litem. The GAL probably cannot force the beneficiary to agree to a trust, but could go for guardianship to protect the funds from being wasted.
Assuming there are sufficient assets involved, the GAL could be the best bet to provide protection for the PR and preserve the inheritance for the beneficiary.
Best, 
Nick

Nicholas Pleasants
Owner
 
Pleasants Law Firm, P.S.
2300 130th Ave NE, Suite A-101
Bellevue, WA 98005-1755
(425) 615-7070 tel/fax
nick at pleasantslaw.com
www.pleasantslaw.com <http://www.pleasantslaw.com> 
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On 5/23/21, 8:01 PM, "wsbapt-bounces at lists.wsbarppt.com on behalf of Cindy Zetts" <wsbapt-bounces at lists.wsbarppt.com on behalf of czlawgirl at earthlink.net> wrote:

    Hello --

    I have not had this issue come up for me, so I'm looking for some help in a probate with a beneficiary who has a substance-abuse problem.  The PR wants to create a trust to distribute the beneficiary's share of the estate to prevent the beneficiary from going on a bender and spending the money on drugs. The Will specifically allows PR to create a trust for a minor or incapacitated beneficiary, but the beneficiary in question fits in neither of those categories at this point.  It seems to me that RCW 11.98.008(1) should allow the PR to create a trust for the benefit of the beneficiary in question. PR wants to provide minimal $$ to the beneficiary until the beneficiary has been clean for an extended period.

    Anyone available to help this PR or to answer a few questions from me so I can help?

    Thank you,
    Cindy Zetts
    Cynthia Zetts Law, PLLC
    Affordable estate planning, mobile service 
    253-720-6446


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