[WSBAPT] Living Trust issue

[Philip N. Jones]

My vote is that an estate does not exist unless a PR is appointed, or a small estate affidavit is filed.  If an estate does exist prior to those events, who acts on behalf the estate.  If Mom dies with three kids surviving, does each of the three kids get to act independently on behalf of her estate?  Of course not.
In other words, if the check payable to her estate is to be deposited to an IOLTA account, who is going to endorse it over to the IOLTA account?  I don't see how anyone can endorse it without being appointed by the court.
As I mentioned before, establishing a good relationship with a friendly bank teller while Mom was still alive might have been an option, but it appears to be too late for that.  One occasionally hears stories of friendly bank tellers helping out in a situation like this.
Warning!  War story follows!  I once organized my college reunion.  I stupidly had everyone make their checks out to "Lewis & Clark College Reunion."  When I walked into my bank with a big stack of such checks, I suddenly realized that I would not be able to deposit them.  I showed them to my favorite teller, and she said, "Don't worry.  We know where you live."
Make friends with a teller today.
Phil Jones

Philip N. Jones
Duffy Kekel LLP
900 S.W. Fifth Ave. Suite 2500
Portland, OR 97204
pjones at duffykekel.com<mailto:pjones at duffykekel.com>
(503) 226-1371 - office
(503) 853-1482 - cell
(503) 226-3574 - fax

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Bruce Moen
Sent: Monday, April 17, 2023 7:21 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Living Trust issue

Hi Josh,

And I don't really know the answer to all of this or what the Bar may think.

To my mind, an estate  or a trust is not an entity like an LLC or a corporation. An estate or a trust, to my mind, is a relationship and a representative capacity.  To me, the estate exists only via the appointment of a PR or a legislative work around like a Small Estate Affidavit.   Maybe I'm overly cautious, but I declined to use my IOLTA account thusly.  I succeeded in getting the check reissued.

  Bruce

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 Joshua McKarcher
Sent: Monday, April 17, 2023 6:47 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Living Trust issue

Well, this is interesting. I don't think an estate does not exist. I think it is created immediately upon the death of a person and consists of all their property not held (in this example) in trust. Reimbursements owed to the individual decedent are property of the decedent's estate. Whether that estate is administered or resolved by a small estate affidavit (note word "estate"), or by a court process, there is an estate. The check is made payable to the estate, and I would defend this approach to the Bar without hesitation - UNLESS there is a missing fact, such as this child is NOT the only heir and there are disinherited heirs at law, say. But in absence of that - on these easy ones - if I'm representing the one person responsible for resolving the decedent's estate, then I just cannot imagine why the Bar would object to resolving so easily the joint interests of all parties involved, including the payor. Best, Josh

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 Bruce Moen
Sent: Monday, April 17, 2023 6:22 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Living Trust issue

I'm not sure about the IOLTA deposit.
The bank may accept the deposit, but would the Bar Association approve if audited.
Basically, you are negotiating a check to a non-existent payee.

I've had this issue and declined the IOLTA option for a payee that I know does not exist.

No harm, no foul?  Or a violation?

Does anyone know whether the Bar would approve?

  Bruce Moen

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 Joshua McKarcher
Sent: Monday, April 17, 2023 5:58 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Living Trust issue

If you represent the estate - which exists whether it is being administered in court or not - by representing its PR, as I suspect you do, then you can deposit the check to your IOLTA account, let it go collected, and credit it to her next bill or write her a check. Voila!

Alternatively, she can persuade her own bank that she is the only beneficiary of the estate via the trust, and maybe they will negotiate it for her if they know her well.

Or if there is a trust account, she can try to persuade the bank holding the trust account that the trust is entitled to all property of the estate by virtue of the will.

I solve these problems with bank relationships, in the end. It's the easiest and sometimes only option available.

Good luck! Best, Josh

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 Jenna Brozik
Sent: Monday, April 17, 2023 5:30 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Living Trust issue

Hello list mates,

Client's mother passed away and the mother had a living trust.  Client is the Trustee of the Living Trust and only beneficiary.  All assets were titled in the Living Trust. However, client received a check in the mail after mother passed away.  Apparently the mother overpaid her healthcare premium and the company issued her a check for the overpayment.  The check is made out to the Estate.  Client called to ask company to make it out to Living Trust.  Company has refused. Company has refused to reissue the check under any name.

Should client just open up a bank account under the Estate to get this check deposited?  No probate is necessary in this case.  Any suggestions would be appreciated.

Jenna Brozik
Managing Attorney
PRINZ & BROZIK PLLC
445 S. Grand Avenue
Pullman, WA 99163
509-338-0908 Telephone
509-338-3527 Facsimile

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