[WSBAPT] Living Trust issue

[Sarah McCarthy]

Can somebody find out if we can all obtain some CLE credits for reading
this thread, and let me know?
:)


*Sarah O’Farrell McCarthy*


*(Pronouns: she / her)*Attorney | Kelly, Arndt & Walker, Attorneys at Law,
PLLP
P.O. Box 290 | 6443 Harding Avenue | Clinton, WA  98236

(Located on Whidbey Island, Island County, Washington)
Phone: (360) 341-1515 | Fax: (360) 341-3272
sarah at kawlawyers.com | www.kawlawyers.com


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On Mon, Apr 24, 2023 at 10:42 AM Diane J. Kiepe <DJKiepe at depdslaw.com>
wrote:

> Technically, to take it a step further there is an estate even if all
> assets pass by non-probate designation – right – if there are bills to be
> paid, certain non probate assets can be claimed to satisfy those debts.
> When I present, I always discuss taxable estate vs. probate estate vs.
> estate generally – it is often a surprise to folks.  By way of personal
> example, I did loose a family member prematurely in the natural order of
> things, all he had, literally was life insurance and personal property –
> his car and home were both secured loans and collected by the lender’s.
> His estate was his personal property which was primarily distributed to his
> minor daughter and my folks just amongst the family, no probate was opened
> by the family because no true probate estate, creditors called and we told
> them they were welcome to open probate but there were no assets to collect
> from, there was no taxable estate, but yes he had an estate generally.
>
>
>
> I too, as I believe Tim is saying, have run checks through our firm
> account.  Ultimately, I believe it’s a matter of being able to trace and
> show proper distribution of money received.  What I won’t do is run
> receipts of funds for a foreign person PR for the estate – I am just not
> clear on withholding rules if I were to do that and it’s too daunting.
> Would be curious if anyone else has.
>
>
>
> *Diane J. Kiepe*
>
>
>
> Diane J. Kiepe
>
> Douglas Eden
>
> 717 W. Sprague Ave.
>
> Suite 1500
>
> Spokane, WA  99201
>
> djkiepe at depdslaw.com
>
> 509-455-5300
>
>
>
> *From:* wsbapt-bounces at lists.wsbarppt.com <
> wsbapt-bounces at lists.wsbarppt.com> *On Behalf Of *Timothy Williams
> *Sent:* Sunday, April 23, 2023 8:04 PM
> *To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> *Subject:* Re: [WSBAPT] Living Trust issue
>
>
>
> This has been an interesting thread, and I appreciate the conversation
> greatly. I do disagree with Bruce (and others), on a number of points. The
> legislature in its wisdom has allowed for the non probate transfer of
> assets. I designate a personal representative in my will. When I die, I
> have an estate that must be distributed. Even though it vests immediately,
> there is still a role for the PR, and still an estate for any item still in
> my name. Your contention there is no “estate” is in my opinion incorrect;
> so long as there is *title* in a decedent’s name, there must be an
> estate, and the need for a pr, at least in some cases, to effect the
> transfer to the rightful, “vested” owner. Probate or not. Thus in a non
> probated estate there is still a pr, and often a need for the pr. This I
> believe is your second error. While a court gives authority to a pr in a
> probated estate, when a probate is unnecessary, there is still a pr if
> there is a valid will. So I agree with the statement that an unprobated
> Will  "may be accorded whatever legal effect some third party wishes to
> accord it." This is at least implied by the statute, and likely true at
> common law.
>
>
>
> My IOLTA account is designed to hold assets that do not belong to me. I
> control it, but they are not my funds. There is no requirement or
> regulation that the funds ever be designated or distributed to me. They
> belong to someone else. I am a fiduciary, and I am responsible for them,
> and I take that responsibility very seriously.
>
>
>
> I have “endorsed many many checks over the years with my IOLTA stamp, most
> made out to either me or my IOLTA account, but many more made out to a
> variety of third parties, including estates (both probated and non
> probated), trusts, and deceased persons. I have done so for both small and
> for significant amounts. The bank cashes them without question. The
> underlying maker has never questioned the distribution, including on
> occasion the United States Treasury. I distribute it to its rightful owners
> pursuant to my fiduciary duty. We have as attorneys been granted that
> authority; why not use it to the benefit of our clients.
>
>
>
> Timothy E. Williams
>
> Attorney at Law
>
> 5302 Pacific Ave
>
> Tacoma, WA 98408
>
> (253) 591-7088
>
> (253) 591-7086 fax
>
> tim at tewilliamslaw.com
>
> www.tewilliamslaw.com
>
>
>
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>
>
>
> *From:* Bruce Moen <brm at moenlaw.com>
> *Sent:* Saturday, April 22, 2023 12:32 PM
> *To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> *Subject:* Re: [WSBAPT] Living Trust issue
>
>
>
>
>
> Since I (inadvertently)  started this long thread, then I guess that I
> should comment.
>
>
>
> I think this discussion is all attributable to different definitions and
> different usages.
>
>
>
> Historically, there were no fixed meanings to any of these words in the
> evolution of English law.
>
>
>
> Fast forward to today, still different usages to the same words.
>
>
>
> "Estate" to me (no research here) means only an interest in property. The
> owner has an estate in Blackacre while living and then the heirs and
> devisees upon the owner's death.  No estate was created, it just changed
> hands.
>
>
>
> I disagree that  an estate comes into being at death "(or are “created” or
> “take on meaning,” pick your phrase)."
>
>
>
> I agree that the concept of an estate exists  in US bankruptcy law,
> general insolvency law,  decedents’ estates, etc. But no common meaning.
> The federal tax code defines "estate" to include non-probate assets in the
> taxable "estate" for example.
>
>
>
> The purpose of a probate (or intestate administration) is to answer the
> question: From the deceased owner into whose hands?  Instant vesting rule
> applies, no vacuum in title allowed. The court appoints a PR who magically
> has the power and authority to take control of the "estate" that was owned
> by the decedent notwithstanding the instant vesting rule.
>
>
>
> Without the appointment of a PR, then no-one is in charge.  No-one to
> endorse checks, to convey title, etc.
>
>
>
> I disagree that an unprobated Will  "may be accorded whatever legal effect
> some third party wishes to accord it." I believe that only the court can
> accord legal effect.
>
>
>
> I do agree that your banking suggestion would work as a practical matter
> because the bank may well cash the check and you take the risk when you
> disburse the cash from your IOLTA account to the sole heir.  But then you
> and your client  have usurped the court's function of determining heirship.
> What if other heirs exist unbeknownst to you and your client?  You take the
> risk, granted, but I personally would hesitate to take that risk.
>
>
>
> Why not take a risk? Probably because of the nature of my practice.  It is
> 99% estate and trust administration, but it is 90% contested, litigated or
> just plain messy. The heirs or beneficiaries are at odds and no
> cooperation.  So perhaps I'm more conservative. I'm often the appointed
> Successor PR and often co-counsel representing a PR. When asked why not
> take a risk, I point to the above concepts that legitimacy of the Will and
> legitimacy of the appointment of the PR comes only from the court.
>
>
>
> I hope that all find this thread interesting and taken in good spirits.
>
>
>
>   -Bruce
>
>
>
>
>
> *From:* wsbapt-bounces at lists.wsbarppt.com <
> wsbapt-bounces at lists.wsbarppt.com> *On Behalf Of *Joshua McKarcher
> *Sent:* Saturday, April 22, 2023 8:08 AM
> *To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> *Subject:* Re: [WSBAPT] Living Trust issue
>
>
>
> Given this exchange yesterday, and because further delay is unhelpful at
> this point, below is my promised reasoning for Bruce and Phil, or anyone
> else who cares, if they have not blacklisted me as spam yet . . . 😉. . .
>
>
>
> I start with two questions that indicate what my elaboration below aims at.
>
>
>
> Phil, what is your reasoning for why no “estate” exists anywhere until a
> PR is appointed (or a small estate affidavit is signed) somewhere? I see no
> evidence for that position. (My reasoning is below, as I promised earlier
> this week.) (Another way of asking this after your reply this morning: Are
> you sure that Terry’s definition, from section 2203 about the estate tax,
> is a definition limited to one kind of federal tax and not just a common
> sense definition reflecting Western law generally, which might be
> persuasive to a court or other authority analyzing this question?)
>
>
>
> And, second, how is it “fraudulent” if a bank deposits an unendorsed check
> (or maybe one endorsed by “executor as defined under IRS Code 2203,” which
> is my way of jesting after your reply to Terry, not literal) with full
> truthful disclosure by a lawyer that it is property of a decedent’s estate,
> the proper fiduciary for which is our client? (Again, my reasoning is
> below.)
>
>
>
> The rest of this tome I drafted as I had time this week . . .
>
>
>
> I asserted long ago in this thread that, in effect, “An ‘estate’ exists,
> even if there is no PR appointed – so, how about using your IOLTA to
> deposit a check payable to Estate of Decedent, if the dots connect from
> that decedent’s estate to the trust regarding which you represent the
> trustee.”
>
>
>
> Why? Because I have until this thread thought it completely
> uncontroversial that:
>
>
>
> -- a decedent’s “estate” at the moment of death consists of her real and
> personal property that is subject to probate in one or more jurisdictions
> worldwide;
>
>
>
> -- her “trust estate” is her real and personal property subject to
> disposition by her trust agreement, if one exists; and
>
>
>
> -- her “nonprobate” estate or assets, at the moment of death, are the
> assets (that were part of her lifetime estate) that “transform” from being
> part of her lifetime estate to being part of *neither* estate previously
> described, but become some other person’s by operation of applicable law
> and her valid agreements with banks, life insurers, IRA custodians, etc.
> (Or, if they do eventually, upon being claimed, become part of either of
> the two estates previously described, it is *later* and *by virtue of*
> applicable law and/or her valid agreements.)
>
>
>
> And, just to get it out of the way up front, I have considered it
> uncontroversial that an unprobated pour-over will – which can be filed
> for $20 post-mortem with our superior courts, and which can be admitted in
> evidence in some state court proceedings – is still a “will” (as defined in
> the RCW) and may be accorded whatever legal effect some third party wishes
> to accord it in a particular circumstance, even if not formally
> proved/probated or formally used to obtain Letters Testamentary.
>
>
>
> So, I have always considered that, at the moment of death, the three
> categories above come into being (or are “created” or “take on meaning,”
> pick your phrase) as a matter of law, even if each is a legal fiction
> useful for applying laws and rules to the “fictional thing” (like
> unincorporated associations or accidental general partnerships that exist
> and can be “acted upon,” whether anyone realizes it exists or not). This
> concept of an “estate” applies in US bankruptcy law, general insolvency
> law, the law of decedents’ estates, and other similar regimes for
> “administering assets of a person or entity.”
>
>
>
> The “probate estate” seems to me to be subject to subdivision, such as if
> the assets comprising it are subject to administration in 2+ states’
> courts. A “[StateName] probate estate” takes on legal meaning – and the
> court-appointed PR is entitled to take “possession” of the probate estate *subject
> to that state’s laws* – if a state court appoints an administrator or PR
> of the portion of the “probate estate” that is *subject to that state’s
> laws*.
>
>
>
> But that single state court proceeding does not necessarily implicate or
> affect the remainder of the worldwide “estate” that is *not* part of the
> “[StateName] probate estate” subject to the state court proceeding.
>
>
>
> Or, a state’s laws may allow that a “small estate affidavit” may *provide
> protection to* or *require* the holder of an asset who relies on the
> statements in the affidavit to hand over an asset to the affiant.
>
>
>
> That can be wonderful and helpful. But note that the small estate
> affidavit statute is *permissive*, not *mandatory*. It is aimed at
> forcing third parties to turn over property they refuse to; and giving
> protection to third parties who do so. It is not mandatory upon those third
> parties; they can hand over property at their own risk if they wish to.
>
>
>
> And, regardless, sometimes the small estate affidavit would be *untruthful
> to sign*.
>
>
>
> Imagine a probate proceeding in StateXYZ court for real property titled
> individually there, but a $1,500 bank deposit that is later discovered in
> the decedent’s home state of Washington, where everything else was
> successfully funded to the RLT, negating the need for probate in Washington
> of the pour-over will.
>
>
>
> Do we really want the Washington trustee, in order to collect the $1,500
> deposit to sign a small estate affidavit when the statute requires the
> affiant – our client! – to state that administration is not pending in any
> jurisdiction, when one is in StateXYZ? *See* RCW 11.62.010(2) (“shall
> state”) and sub (e) (no petition pending or granted anywhere). I assume not.
>
>
>
> If a third party hands over property (even, say, this bank holding $1,500)
> to a person named as nominated PR in a valid “will” presented to them,
> because the third party satisfies itself that that same person is the
> current trustee of the trust to which the asset is ultimately owed under
> the pour-over will, then I know of no law that makes it illegal for that
> third party to hand over that asset to that third party *voluntarily*.
> They simply are *liable* for doing so because they don’t have a small
> estate affidavit or Letters Testamentary in-hand.
>
>
>
> And I have had credit unions and banks do just that. Because I connect
> dots and practically depose my own clients in these matters before I “do”
> these things.
>
>
>
> Perhaps that shocks some on this chain, but it’s absolutely happened with
> Big Bad Banks. And to the harm of absolutely nobody, and upon the
> misrepresentations or fraud of nobody.
>
>
>
> (Indeed, I’ve even had that occur with two California financial
> institutions, one of which provided its own affidavit that did NOT require
> untruthful statements and was very well drafted. It was shockingly
> reasonable. “Yay banks!” That’s a little joke for anyone still reading.)
>
>
>
> A properly executed, self-proved pour-over will that is unprobated, is a
> perfectly useful document to third parties that satisfy themselves that the
> lawyer and “nominated PR who is acting trustee” working with them are
> legit. A document that is well written, logical, looks like the trust
> document, is dated the same date maybe, etc. etc., can pass a sniff test
> that other wills and associated trusts manifestly do not.
>
>
>
> And so I persist: I still assert that a check payable to “Estate of
> Decedent” or “Decedent” may be legitimately negotiated (and maybe even
> endorsed “executor” per Terry; or just *not endorsed at all*, as I have
> noted) by a person *accepting the risk* of acting with respect to estate
> property because they are acting according to their fiduciary duty to the
> beneficiaries and are mindful of their duty to *apply* the funds
> properly.
>
>
>
> And I’m having a hard time understanding where the problem “is” or at
> least “should be” if:
>
>
>
> -- a well-regarded, 100+-year-old bank accepts for deposit to my IOLTA
> account an *unendorsed* check (totally unexceptional in my experience,
> but my banker’s known me since childhood; and Heather’s obviously permitted
> it for years, so I’m not the only one who finds this unexceptional based on
> actual experience);
>
>
>
> -- the money is attributed in my IOLTA records to a “matter” on which my
> firm represents a client;
>
>
>
> -- I am willing to take the risk that it is proper to receive it, credit
> it, and distribute it accordingly in connection with the representation;
>
>
>
> -- the check goes fully *collected* (not just *available*, a distinction
> my staff and lawyers monitor closely); and
>
>
>
> -- the funds are applied properly (i.e., distributed to the parties to
> whom entitled).
>
>
>
> If the client or the lawyer are acting outside the authority of the
> relevant documents, that is on them, and they should and will be held
> responsible.
>
>
>
> But that is a separate matter and analysis from whether funds payable to
> “Estate of Decedent” or “Decedent” can be deposited and held in the IOLTA
> account of the lawyer hired by the one person on the planet (who is
> nominated PR under the will and sole trustee of the RLT to which the will
> pours over) to administer the (probate and trust) estates of Decedent.
>
>
>
> If I’m dumb enough to deposit that check *without confirming all the dots
> are connected to my client*, then the rules will hold me accountable, as
> they should.
>
>
>
> For example, Phil had used earlier in this thread the example of the three
> children of a decedent who died *intestate*. (Jenna, our original poster,
> did not have an intestate decedent, but a trustee who I “think” or “assume”
> was also the nominated PR under an unprobated pour-over will. But Phil’s
> example is apt, so let’s consider it.)
>
>
>
> In Phil’s example, I would no more deposit a check payable to Estate of
> Decedent or Decedent for 1 of the 3 kids *without* 1 of them having
> retained me and having obtained Letters of Administration or having signed
> a small estate affidavit (and having full support of the two other
> siblings, having given 10-day notice, etc.).
>
>
>
> (Perhaps a mild irony: I am the guy who tells PR/trustee clients that
> sending one of the beneficiaries to sign a vehicle inheritance affidavit is
> convenient but improper, because – like the “no pending probate” problem
> noted above for Washington small estate affidavits – most of the time the
> affiant collecting the vehicle would be lying to sign the blasted thing,
> because one or more statements is untrue. I tell them I do not advise
> people to lie or sign such things, and I encourage them to do it the right
> way. But I also turn around and deposit their unendorsed $75 insurance
> refund checks in my IOLTA if their bank won’t take it! But, back to Phil’s
> example . . . )
>
>
>
> I would no more tell 1 of the 3 to move all the decedent’s tangible
> personal property to a secret storage shed and lock it up. Both would be
> improper, even under my (let’s say, “permissive”) standards.
>
>
>
> But I submit that if one of the 3 kids presumed to act upon the decedent's
> assets by "doing things" pre-appointment, innocently or otherwise, they
> would reasonably be said to have presumed to act at their own risk upon the
> property of the decedent's (generic, worldwide, lowercase “e”) “estate.”
>
>
>
> So, with deep respect for both Phil and Bruce, nothing I’ve seen (yet)
> persuades me that a decedent’s “estate” does not exist without the
> appointment of a PR or the signing of a small estate affidavit. Even if
> those things happen 99% of the time, so be it; but the “1% cases” are not
> invalid just because they’re rare or seem slightly “riskier.”
>
>
>
> And, of course, often it ends up not mattering that these people described
> above “act upon” estate assets without formal court appointment . . .
> because it ends up being perfectly agreeable to all parties interested in
> the decedent’s estate (whether testate or intestate). The actor’s
> pre-appointment acts are in effect “ratified” after the actor-PR’s
> appointment.
>
>
>
> Or, they are “ratified” by the consent (usually in the form of receipts,
> releases, etc.) following disclosure to all beneficiaries of the probate or
> trust estate’s inventory, receipts (including my renegade IOLTA deposits
> 😉), expenses, tax filings, ending balances, and proposed distributions.
>
>
>
> Lastly, but not really as evidence but just theory, I would go as far as
> to say it is one totally expected and normal use of an IOLTA account in
> such *properly vetted* situations.
>
>
>
> The detailed rules governing IOLTA accounts exist to make otherwise
> unusual transactions work for the better of our legal (and economic and
> other) systems. Consider the oddity of a litigant’s settlement funds being
> received, held, and distributed by the adverse party’s perhaps-despised
> lawyer. I bet that feels unusual to the litigant. Fine. These are unusual
> situations we lawyers are called upon and authorized to handle – with
> careful documentation and laser focus on the *receipt* and *application*
> of the funds.
>
>
>
> The IOLTA rules exist to ensure that extensive documentation -- and
> heightened respect for things like "collected" vs. "available" funds -- are
> given careful heed by those -- we lawyers -- who "know better" and had
> better know what they are doing, but who can lawfully facilitate proper
> outcomes for clients and parties in “unusual” situations *in which
> non-lawyers cannot*. Please note that here the word “unusual” refers to
> it being unusual to non-lawyers. These things are perfectly “usual” to us,
> but that is largely the point: we are trained, vetted, licensed, and
> regulated in ways that ensure we will be disciplined if we do in
> *wrongful* ways these things that are “unusual to non-lawyers,” like
> holding third parties’ funds in our IOLTA accounts. Or in a way that does
> not heed the proper *receipt* and *application* of the funds, which are
> what IOLTA rules focus upon.
>
>
>
> All my very best, Josh
>
>
>
> Joshua D. McKarcher
>
> McKarcher Law PLLC
>
> 537 6th Street
>
> Clarkston, WA 99403
>
> (509) 758-3345
>
> (509) 758-3314 (fax)
>
> josh at mckarcherlaw.com
>
> www.mckarcherlaw.com
>
>
>
>
>
> *From:* wsbapt-bounces at lists.wsbarppt.com <
> wsbapt-bounces at lists.wsbarppt.com> *On Behalf Of *Joshua McKarcher
> *Sent:* Friday, April 21, 2023 10:33 PM
> *To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> *Subject:* Re: [WSBAPT] Living Trust issue
>
>
>
> 1. My bank has done number 1 for years and has operated in the region for
> decades successfully and has offered IOLTA accounts to clients all along. I
> don’t know what else to tell you here, except it sounds like Heather’s bank
> did this for years as well until recently.
>
>
>
> 2. I have never advised a client to endorse a check as PR or anything
> else.
>
>
>
> 3. I don’t accept or deposit checks falsely endorsed. I do agree to
> deposit checks to my IOLTA for clients related to matters on which I advise
> them.
>
>
>
> If I get audited by WSBA as a result of this thread, I will let you know
> how it goes.
>
>
>
> Best, Josh
>
>
>
> *From:* wsbapt-bounces at lists.wsbarppt.com <
> wsbapt-bounces at lists.wsbarppt.com> *On Behalf Of *Philip N. Jones
> *Sent:* Friday, April 21, 2023 9:41 PM
> *To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> *Subject:* Re: [WSBAPT] Living Trust issue
>
>
>
> Three questions:
>
> Will a bank accept an unendorsed check being deposited to an IOLTA
> account?  That would greatly surprise me.
>
> Can an attorney ethically advise a client to endorse a check as PR when
> the client has not been appointed PR?  That would greatly surprise me.
>
> Can an attorney accept and deposit such a check?  That would greatly
> surprise me.
>
> Phil Jones
>
>
>
> Get Outlook for iOS <https://aka.ms/o0ukef>
> ------------------------------
>
> *From:* wsbapt-bounces at lists.wsbarppt.com <
> wsbapt-bounces at lists.wsbarppt.com> on behalf of Joshua McKarcher <
> josh at mckarcherlaw.com>
> *Sent:* Friday, April 21, 2023 6:24:09 PM
> *To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> *Subject:* Re: [WSBAPT] Living Trust issue
>
>
>
> I owe an update on this thread (which I have been working on), but, given
> this quick exchange today and the word “fruadulent,” I feel compelled to
> respond to say I cannot see how it is *fraudulent* NOT to endorse a check
> and for the depositor’s bank simply to *accept* that check for deposit to
> their lawyer-client’s IOLTA account – so long as the bank and its client
> (i.e., my firm, if I’m the lawyer depositing to my IOLTA) are (as the bank
> and I *must*) *accept all liability* resulting from the wrongful *receipt*
> or *application* of the funds.
>
>
>
> But every IOLTA deposit is theoretically subject to dispute. And we have
> very clear rules about how to handle that if a dispute arises.
>
>
>
> And IOLTA funds are often (entirely?), as the rules contemplate,
> third-party property. This is an issue, in my view, of the lawyer’s
> judgment, knowledge of his client and the matter, the bank’s comfort and
> trust of their lawyer-client, the kind and size of check, and other
> relevant factors that are mostly “risk analysis” factors we all deal with
> every day.
>
>
>
> But if all heirs-at-law are beneficiaries of the trust to which the
> unprobated will pours over, and the one serving as trustee and nominated PR
> under the will is also my client (on a “matter”) and has a check payable to *Estate
> of Decedent* or even simply *Decedent* – but does not otherwise have need
> to probate the pour-over will – then I have found nothing in IOLTA rules or
> ethical rules (at least so far this week) that makes it wrong in any way
> for the lawyer to deposit the check to his or her IOLTA account (*if* the
> bank agrees to accept it, which the bank is 100% *not* obligated to do; *see,
> e.g.*, Heather’s bank’s change of heart).
>
>
>
> It is then the lawyer’s (and his client’s) obligation to account for the
> receipt of those funds; and then to *apply* those funds properly. In my
> example that would be by ensuring the funds end up with the beneficiaries
> entitled to the trust’s assets by virtue of the unprobated (but perhaps
> *filed*) will that nominates my client as PR and pours over to the trust
> of which that PR is also trustee.
>
>
>
> (The point there: I am not depositing funds subject to administration by
> someone else who is not my client on a “matter.” Not at all.)
>
>
>
> I can expand more later re my position that Western law supports the idea
> that a decedent’s gross, worldwide, generic, lowercase “e” *estate*
> consists of all property worldwide that is individually titled and subject
> to various jurisdictions’ individual probate or administration statutes.
>
>
>
> That (generic, worldwide, lowercase “e”) “estate” property is all the
> decedent’s property (1) *not* titled to a trust and (2) *not* subject to
> nonprobate transfer under contract and other applicable law (such as IRAs,
> TODs/PODs, life insurance with beneficiary designations).
>
>
>
> Assets that comprise that generic, worldwide “estate” could be subject to
> 15 different jurisdictions’ probate laws. Imagine real property parcels in
> 15 different states (and poor planning, ha ha!). That could result in 15
> state probate court proceedings technically “titled” *In re Estate of
> Decedent*, but that simply creates 15 separate “sub-estates,” each
> consisting of the property subject to each separate state’s probate laws.
>
>
>
> But what if the HOME state has no real property and NOTHING requiring
> Letters Testamentary for administration? Is there really no estate in the
> home state? Until this exchange, I never would have dreamed our profession
> would argue, “Yes, there is no estate in that home state until a PR is
> appointed there or a small estate affidavit is signed and filed there.”
>
>
>
> I respectfully suggest that Western law generally (and Washington law
> specifically) will not likely bear out that there is simply “no estate”
> anywhere until a court-appointed PR is appointed somewhere. There is indeed
> no “Estate of Decedent under Case No. XYZ123 in Washington Superior Court
> for County ABC,” but there is an “estate” – property that belongs to
> someone deceased that needs to be received and applied properly and
> efficiently and sensibly.
>
>
>
> Of course the will *could* be probated, or a small estate affidavit
> *could* be presented, but if a payor of $35 in insurance premium refunds
> (payable to *Estate of Decedent*) or $75 of federal income tax refund
> money (payable to * Decedent*) does not WANT the protection/indemnity
> provided to them by acceptance and retention of the small estate affidavit,
> then I just do not believe lawyers are committing fraud by depositing
> either check to their IOLTA accounts with *no endorsement* by anyone.
>
>
>
> And the following is NOT a “justification” in any way, so proving this
> wrong does not prove my assertions wrong, but test the assertion against
> what IOLTA rules are about: a lawyer could use his IOLTA account all day
> long to deposit checks properly endorsed by his/her client respecting a
> matter on which the lawyer advises the client -- and NOT APPLY THE FUNDS
> correctly. Or perhaps he knows/suspects the client-endorser RECEIVED the
> funds improperly. I believe the law would support the position that it is
> the *receipt* and *application* of client trust/IOLTA funds, not the *endorsement
> of checks*, that the law regulates or intends to regulate.
>
>
>
> And, please do not forget: *nothing* I’m advocating relieves anyone
> involved of *liability* and * accountability* – or even *documentation*
> obligation – for the *receipt* and *application* of those funds. I
> maintain 100% obligation and accountability for every little check like
> this. And I have 0% problem with that, because of how I screen and choose
> my clients.
>
>
>
> All my very best regards, and have a great weekend everyone! Best, Josh
>
>
>
> Joshua D. McKarcher
>
> McKarcher Law PLLC
>
> 537 6th Street
>
> Clarkston, WA 99403
>
> (509) 758-3345
>
> (509) 758-3314 (fax)
>
> josh at mckarcherlaw.com
>
> www.mckarcherlaw.com
>
>
>
>
>
>
>
> *From:* wsbapt-bounces at lists.wsbarppt.com <
> wsbapt-bounces at lists.wsbarppt.com> *On Behalf Of *Philip N. Jones
> *Sent:* Friday, April 21, 2023 12:29 PM
> *To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> *Subject:* Re: [WSBAPT] Living Trust issue
>
>
>
> 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
>
> (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
>
>
>
>
>
> p:   360.855.0131
>
> e:   timothy at stileslaw.com
>
> w:  www.stileslaw.com
>
>
>
> *NOTICE*: The information contained in this email is proprietary and/or
> confidential and may be privileged. If you are not the intended recipient
> of this communication, you are hereby notified to : (i) delete the email
> and all copies; (ii) not disclose, distribute or use the email in any
> manner; (iii) notify the sender immediately. Thank you.
>
>
>
> *From:* Philip N. Jones <pjones at duffykekel.com>
> *Sent:* Thursday, April 20, 2023 2:39 PM
> *To:* WSBA Probate & Trust Listserv <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
>
> (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 *Roger Hawkes
> *Sent:* Thursday, April 20, 2023 2:25 PM
> *To:* WSBA Probate & Trust Listserv <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 <
> 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>
> *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
>
> (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 *Jenna Brozik
> *Sent:* Monday, April 17, 2023 5:30 PM
> *To:* WSBA Probate & Trust Listserv <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
>
>
> ***Disclaimer: Please note that RPPT listserv participation is not
> restricted to practicing attorneys and may include non-practicing
> attorneys, law students, professionals working in related fields, and
> others.***
> _______________________________________________
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