[WSBAPT] disclaimer issue

[Diane J. Kiepe]

I would just add to watch the difference between WA Disclaimer Statute RCW 11.86.041 which specifically says for state purposes the interest disclaimed shall pass as if the beneficiary had died immediately prior to the date of the transfer)  and Federal IRC 2518 (which doesn't treat the person making the disclaimer as predeceased in its language)

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 Heather de Vrieze
Sent: Monday, October 10, 2022 12:45 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] disclaimer issue

I'm not sure I agree with Diane. Or at least I think the following is worth some more research.

I believe that the disclaimant is treated as not having survived with respect to the disclaimed interest. If the disclaimer is of the survivorship element of the account only, then, it is treated as community property or tenancy in common property and would be subject to the husband's will. If the will directs assets to the credit trust, and the wife isn't disclaiming that.

I have had disclaimers of JTWROS survivorship assets before, allowing the assets to pass according to the Will, even when the disclaiming beneficiary was also a beneficiary under the Will. As one child might be on mom's bank account but having not contributed to the account (so no inherent ownership interest) disclaims so that the account can be added to the estate for division among multiple children.

Heather

Heather S. de Vrieze
Attorney-at-Law
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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 Diane J. Kiepe
Sent: Monday, October 10, 2022 11:24 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] disclaimer issue

Shannon,

It does in fact prevent the funding of the CST since there is a requirement for the spouse to survive as you noted there is.  I have had this situation and have encouraged the surviving spouse to still disclaim if taxes are something wanting to avoid or to do some gifting in the years to come.  There is even the possibility of your client gifting into a trust in which she is one of other discretionary beneficiaries (Trustee selection is crucial) and pull it out of her estate for estate tax purposes.

Another thought is to consider a TEDRA where the parties agree that, at last as to financial accounts, JWROS was done without estate plan consideration and by process of the bank (assuming that is true) and that all parties agree it should pass to the CST.  In this later approach just be careful that all are clear on your client/representation.  Banks often times just check the box and the client's don't have any idea that it trumps their Will.



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 Shannon Jones
Sent: Monday, October 10, 2022 9:40 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] disclaimer issue

Listmates, Spouse died and community estate is around $3.6M. Spouse had a credit trust Will, however, all community assets were held joint with right of survivorship. There are no assets passing under the Will to fund the credit shelter. Surviving spouse is still eligible and there are sufficient assets to disclaim. But the Will says if spouse does not survive, the specific bequest to the credit trust lapses and the assets pass outright to the adult children: "If my spouse does not survive me, the bequests provided for in this Article shall lapse and be disposed of according to Article..." Does this provision prevent use of the disclaimer to fund the credit shelter?

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Shannon R. Jones | Attorney
Campbell Barnett PLLC
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