[WSBAPT] Long Term CIR

Wed Sep 14 17:48:38 PDT 2022

 Well, Roger, I would start with the Div I case (published)  In re GF....  170 Wn. App. 631 (Wash. Ct. App. 2012) 170 Wn. App. 631 where the court enforced an oral CIR agreement. Basically, it directs you to the factors laid out in Matson

    On Monday, September 12, 2022 at 04:26:42 PM PDT, Roger Hawkes <roger at law-hawks.com> wrote:  

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Thanks, Jayne; is there a cir pre or post case published?

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>On Behalf Of Jayne Marsh Gilbert
Sent: Monday, September 12, 2022 2:52 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Long Term CIR

You can represent both of them in creating a CIR agreement (similar concepts to pre-/post nuptial agreements, full disclosure of assets and debts). Their individual Wills may reference/restate the CIR agreement.

Best practice is to get a signed acknowledgment & waiver of the conflict of interest between the parties before receiving financial info. 

Even with that, one of the parties must have advice from an independent attorney before executing the agreement and an attorney certification. 

The certification of both attys are then attached to the CIR agreement. 

Enforcement of the CIR agreement is dependent on the fairness doctrine and the procedural requirements of the antenuptial agreement. My 5 cents

On Monday, September 12, 2022 at 02:28:41 PM PDT, Joshua McKarcher <josh at mckarcherlaw.com> wrote:

Hi Tom,

I truly value your perspective and want to learn here: Why does Paul’s original description scream risk that is so far beyond planning that I have always assumed planners do for unmarried couples or married couples with kids from prior marriages (even one they wish to disinherit)? I do not serve a ton of CIR couples, so it seems as though there may be something I am missing.

Are you willing to elaborate? If they are willing to pay the fees necessary to address the risks and “cabin them in,” I am not understanding why this is so unusually risky. But I learn every day! 😊

All my best, Josh

From:wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>On Behalf Of Tom Westbrook
Sent: Monday, September 12, 2022 3:00 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Long Term CIR

I realize that I am on old guy, but my advice here is “run Forrest run”……………

This has too many traps and is the amount you get paid really worth the risk?

Sincerely,

Tom

Thomas J. Westbrook

Attorney at Law

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From:wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>On Behalf Of Joshua McKarcher
Sent: Monday, September 12, 2022 1:53 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Long Term CIR

Hmmm. I better test myself here: An unmarried couple doing joint estate planning is forming a joint representation no different than a married couple, or two business partners . . . right? No secrets, and if they fight and can’t solve it, they both lose you.

This is not a pre-nup; it’s two people planning together. You can’t keep secrets of Client 1 from Client 2 (which I bring up right after saying “Hello” in my conference room, before I care if they’re married or not), etc., but otherwise, I’m not sure I follow what conflicts there are here.

Aside from that, however, here this couple seems probably very likely to have a CIR that would indeed produce “spousal-heirship-like results” after the death of one of them. But by planning they will make that complication largely irrelevant by doing it in wills or a trust. I think?

And they will have the benefit of lifetime powers for finances and health care, which could be unpleasant surprises for them if certain family “disapprove.” (The pre-Obergefell same-sex couple problem.)

At most you may wish to ask them if they want the documents (if it gives property to the other of them) auto-revoked upon physical separation or “something” equivalent to legal separation or divorce. (I have no idea if Washington allows CIRs to be dissolved by a court filing like a legal separation or divorce. I’m just sitting here realizing I’ve never had the situation present itself.)

Good luck!

Best, Josh

From:wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>On Behalf Of Roger Hawkes
Sent: Monday, September 12, 2022 2:18 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Long Term CIR

Yes separate estate plans work; waiver of conflicts is harder because no one really knows what they ‘own’.

From:wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>On Behalf Of Paul Neumiller
Sent: Monday, September 12, 2022 10:02 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Long Term CIR

I received a call by a man who wants to do estate planning for him and his wife of thirty years.  Prior kids on both sides.  At the end of the call setting the appointment, he sort of chuckled and said “Well, I just call her my wife.  We never married.”  Uh-oh.  So, if memory serves me, I don’t think you can inherit under a CIR.  So, do I just prepare estate plans for them as if they are separate people?  Is this a conflict that I can even “disclose and waive” around?  Rumor is that the man was hesitant in even going to an attorney.  Any advice would be great. 

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