[WSBAPT] Anti-lapse statute
Bryce Dille
Bryce at dillelaw.com
Thu Aug 24 13:06:57 PDT 2023
In my case the first paragraph state the will recited its provisions "apply not only to my three children but also to all children who may hereafter be born or adopted and to their issue." This language clearly shows intent to go to issue and doesn't require survivorship as a condition of inheriting.
Bryce H. Dille
Dille Law, PLLC
2010 Caton Way SW Ste. 101
Olympia, WA 98502
Office: 360-350-0270
Cell: 253-579-5561
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Lewis, Amy C.
Sent: Thursday, August 24, 2023 12:54 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Anti-lapse statute
We had a case with a similar issue. Our brief research found some authority indicating that "share and share alike" can be interpreted as excluding descendants of a deceased beneficiary. I am not certain that is sufficient to count as "otherwise provided" to overcome application of the anti-lapse statute. In our case the surviving siblings were willing to agree to the application of the anti-lapse statute and we had them sign a TEDRA agreement to that effect.
Good luck! Let us know what the commissioner decides.
Amy Lewis, Attorney
Pronouns she/her/hers
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909 A Street, Suite 600 | Tacoma, WA 98402
phone 253.572.4500 | fax 253.272.5732 | www.eisenhowerlaw.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.eisenhowerlaw.com_&d=DwMF-g&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=ZjJT61sMYHYXW1a7W0qvaz-zO3o_Ea2RRxXvW5Yr3-0&m=gi6moczclqadY8eIGj6D0AvuQESQBZSURodkR3D47NL6v-LV6eWZ9mSeWBwg3IRv&s=g1wWUWL0vk5iPRTjZjK_2bH1a_6-48u83-jstPGgKAg&e=>
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 Bryce Dille
Sent: Thursday, August 24, 2023 12:36 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Anti-lapse statute
I agree and In hope the commissioner on Friday also agrees.
Bryce H. Dille
Dille Law, PLLC
2010 Caton Way SW Ste. 101
Olympia, WA 98502
Office: 360-350-0270
Cell: 253-579-5561
[R_Alan_Swanson-WH-200]
** Please note that I use the dictation feature of my iPhone and that sometimes everything I say does not get properly translated**
This transmission contains confidential attorney-client communications and may not be disclosed to any person but the intended recipient(s). If this matter is transmitted to you in error, please notify the sender immediately.
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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 Mark Anderson
Sent: Wednesday, August 23, 2023 2:16 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Anti-lapse statute
I have reconsidered my position. Let me see if I have the scenario straight. Consider the following hypothetical:
Martha died and her Will left everything to Ross, her spouse. But Ross predeceased Martha. Next in line are their 3 children, Huey, Dewey, and Louise, who were to receive their distributions share and share alike. But Louise also predeceased Martha. The basic question I think you're asking is this: do Louise's issue receive any distribution from Martha's estate?
RCW 11.12.110 says:
Unless otherwise provided, when any property shall be given or any appointee appointed under a will, or under a trust of which the decedent is a grantor and which by its terms becomes irrevocable upon or before the grantor's death, to any issue of a grandparent of the decedent and that issue dies before the decedent, or dies before that issue's interest is no longer subject to a contingency, leaving descendants who survive the decedent, those descendants shall take that property or appointment as the predeceased issue would have done if the predeceased issue had survived the decedent.
If those descendants are all in the same degree of kinship to the predeceased issue they shall take equally or, if of unequal degree, then those of more remote degree shall take by representation with respect to the predeceased issue.
In the above scenario, Martha is the "decedent" referred to in RCW 11.12.110. RCW 11.02.005 defines "Issue" as "all the lineal descendants of an individual." So RCW 11.12.110 would apply to Martha's parents (as children of her grandparents), Martha's brothers and sisters, Martha's children, and so on down the line.
According to the first sentence of RCW 11.12.110, if Louise had survived Martha, Huey, Dewey, and Louise would each take one third. Applying the second sentence of RCW 11.12.110, though, Huey and Dewey each take one third, and Louise's children, as descendants of a more remote degree, would receive Louise's share by representation.
Mark B. Anderson
ANDERSON LAW FIRM PLLC
821 Dock St Ste 209 PMB 4-12
Tacoma, Washington 98402
+1 253-327-1750
+1 253-327-1751 (fax)
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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 Bryce Dille
Sent: 08/23/2023 11:59 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Anti-lapse statute
Doesn't RCW 11.12.110 apply so children of deceased child get their parent's share by right of representation since will simply said share and share alike and didn't require survivorship as a condition of inheriting.
Bryce H. Dille
Dille Law, PLLC
2010 Caton Way SW Ste. 101
Olympia, WA 98502
Office: 360-350-0270
Cell: 253-579-5561
[R_Alan_Swanson-WH-200]
** Please note that I use the dictation feature of my iPhone and that sometimes everything I say does not get properly translated**
This transmission contains confidential attorney-client communications and may not be disclosed to any person but the intended recipient(s). If this matter is transmitted to you in error, please notify the sender immediately.
Business Entity Creation and Management, Business, Government and Tax Law, Real Estate and Land Use, Residential, Commercial and Condominium Development Real Estate and Commercial Transactions & Closings, Including Performing Services as IRS Section 1031 Exchange Facilitator Estate Planning, including Wills and Trusts, and Probate Administration Representation Homeowners/Condominium Association Real Estate Developments Real Property Foreclosures and Forfeitures.
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 Mark Anderson
Sent: Wednesday, August 23, 2023 11:46 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Anti-lapse statute
I think the operative words of RCW 11.12.120 (2) are "unless otherwise provided." I would be looking for specific language in the will that talks about, for example, right of representation for distributions per stirpes. If the distribution is not "otherwise provided" in the will, then it seems to me that the anti-lapse statute would apply and the estate would be divided between the surviving children.
Mark B. Anderson
ANDERSON LAW FIRM PLLC
821 Dock St Ste 209 PMB 4-12
Tacoma, Washington 98402
+1 253-327-1750
+1 253-327-1751 (fax)
marka at mbaesq.com<mailto:marka at mbaesq.com>
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-----Original Message-----
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 Bryce Dille
Sent: 08/23/2023 10:40 AM
To: wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Anti-lapse statute
Where the will residue to surviving spouse, but if surviving spouse is deceased, then to children share and share alike and one of the children, predeceases the surviving spouse do the children of the deceased child receive their parent share by right of representation under the anti-lapse statute, or is the estate simply divided between the surviving children. your input would be appreciated.
Bryce H. Dille
Dille Law, PLLC
Office: 360-350-0270
Cell: 253-579-5561
** Please note that I use the dictation feature of my iPhone and that sometimes everything I say does not get properly translated**
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