[WSBAPT] Living Trust issue

[Philip N. Jones]

I don't see any ethical issues, except one:
Who is going to endorse the check, and how are they going to endorse it?  We can't ethically advise our client to sign as PR when the client is not a PR.
Some attorneys say to their clients, "I can't ethically advise you to do X.  Wink.  Wink."  Knowing full well that the attorney just gave the client an idea of what to do.  And the attorney can then use "plausible deniability" to claim that he/she did not advise the client to do X.
But in this case, the attorney will be placing the funds in his/her IOLTA account.  Difficult to plausibly deny that the attorney participated in an action that might be viewed as fraudulent.
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 Timothy Lehr
Sent: Friday, April 21, 2023 12:03 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Living Trust issue

Wondering if there would be any ethical violations/issues with depositing the check in an attorney trust account and re-issuing to the trust? This was just off the top of my head and I have not looked into any issues that might be involved, so don't quote me on the above as a proper or ethical solution...

Timothy C. Lehr
Attorney & Partner

[cid:image001.jpg at 01D9744C.D2712FF0]

p:   360.855.0131
e:   timothy at stileslaw.com<mailto:timothy at stileslaw.com>
w:  www.stileslaw.com<http://www.stileslaw.com/>

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From: Philip N. Jones <pjones at duffykekel.com<mailto:pjones at duffykekel.com>>
Sent: Thursday, April 20, 2023 2:39 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Living Trust issue

That's because I grew up in Lake Forest Park and drank the water (literally, out of a well).
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<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Roger Hawkes
Sent: Thursday, April 20, 2023 2:25 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Living Trust issue

Phil; you clearly have good genes on one side at least.

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 Philip N. Jones
Sent: Monday, April 17, 2023 5:48 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Living Trust issue

This is a problem we all run into constantly.
I doubt a bank will open an estate account without Letters Testamentary.
Does the client happen to have an account that is joint with Mom?  Perhaps you could deposit the check to that account, but some banks will not let you do that if they know that Mom has died (and the check, after all, is made out to her estate).  Some people suggest using a night deposit slot so that there won't be a teller to ask questions, but I am told that the banks scrutinize such deposits just like any other.
Is client on good terms with a bank teller who might look the other way and deposit the check to an account in the name of the trust?  Or in the name of Client/Child?
This check might be particularly difficult to deposit since it is made out to the estate.  Might be a little bit easier if it were made out to Mom.
Be careful about advising Client to endorse the check and writing "personal representative" under her signature.  Client is not a personal representative, and you don't want Client to do anything fraudulent.
I have now run out of ideas.  And none of the above ideas are very good ones.
If it gives you any comfort, I had the exact same problem a couple of months ago when my Mom died.  She was 101 and had covered the Roosevelt White House as a cub reporter.
Welcome to modern banking,
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<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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