[WSBAPT] Question about Revocable Living Trust

Mon Feb 27 14:39:10 PST 2023

It just occurred to me that if the designated PR(s) signed appropriate language promising to do what the most recent letter of instructions says, perhaps the appointed PR could enforce that as if it was a will????

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Candace Wilkerson
Sent: Monday, February 27, 2023 1:39 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Question about Revocable Living Trust

Hi Josh, thanks for your thoughts!  I think everyone’s responses make sense, and – luckily - this client is not difficult.  I’ll just explain the situation to her and we can take it from there.

Much appreciation to everyone who contributed to this discussion!

Best,
Candace

*Candace is available to respond to emails and phone calls between the hours of 7:00 a.m. and 3:00 p.m.  If you have an urgent matter outside that time period, please call our office at the number below.

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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 Joshua McKarcher
Sent: Monday, February 27, 2023 2:36 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Question about Revocable Living Trust

At the risk of offending a whole boatload of colleagues on this list, I think it is incorrect to say this “will not” or “cannot” work. I think Phil has the right take all around: probably doable; totally inadvisable; maybe consider this only the first of many risk-increasing requests by a client who thinks they can “do it themselves”; and decline altogether if they insist.

But as for technicalities and possibilities, the wills statute is not automatically incorporated unless the trust somehow does so, I suppose. And, trust can be in handwriting, so amendments can be.

So, if a lawyer wanted to do this and make it as “hopefully enforceable” as possible, I know of no reason a lawyer could not setup a document titled something like AMENDMENT TO TRUST (optional to add a blank beforehand for words like FIRST, SECOND, etc., but that is risk-increasing and inconsistency-begging).

The first paragraph could contain the relevant recitations, blanks for “today’s” date (the date of the amendment) and state the desire to update the disposition of the residuary trust estate, and then have a big blank box taking up 2/3 of the page that has precautionary language at the bottom like “all percentages must add up to ___% or this amendment will be deemed invalid.”

If the client understands why such a cautionary note is important (to make at least the most recently valid, or EXISTING document and dispositions valid)

Spaces for grantor(s) signature, and voila!, you have a perfectly enforceable trust amendment, unless someone knows something I don’t!

Take care, everyone – wow, we’re off and running for a Monday morning! 😉

Best, Josh

Joshua D. McKarcher
McKarcher Law PLLC
537 6th Street
Clarkston, WA 99403
(509) 758-3345
(509) 758-3314 (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 Diane J. Kiepe
Sent: Monday, February 27, 2023 12:13 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Question about Revocable Living Trust

As to cash gifts, you are correct that a letter of instruction won’t work.  What I have done in a couple cases is one of the following:

1.         Leave a specific bequest of residuary to charitable organizations selected by the Successor Trustee (or in my case PR), who has complete discretion subject to all gifts being made only to 501(c)(3) organizations.  Then deduction is granted.

2.         Had 2 different clients set up donor advised funds, to be pass through entities, funded at death, with their initial list of charities and to work with the community organization as changes were desired – the foundation doesn’t charge, I do and for one of my  clients in particular, this has proved to be money and time saving.

Good luck.

Diane J. Kiepe

Diane J. Kiepe
Douglas Eden
717 W. Sprague Ave.
Suite 1500
Spokane, WA  99201
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>
509-455-5300

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 Stuart Scarff
Sent: Monday, February 27, 2023 11:07 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Question about Revocable Living Trust

I have had similar requests and advised against the concept. Because trusts need not comply with the Statute of Wills, I wonder if referencing the list of beneficiaries and assets/Letter of Instruction in the Trust and attaching it as a schedule/exhibit to the Trust makes a difference?

Stuart Scarff, Esq.
3035 Island Crest Way, Suite 201
Mercer Island, WA  98040
206.236.1500
206.905.5912 (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 Heather de Vrieze
Sent: Monday, February 27, 2023 10:47 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Question about Revocable Living Trust

Candace,

I’m interested to see if anyone has a contrary opinion, as I have had similar requests over the years, and have always advised clients that this is not a workable solution.

Heather

Heather S. de Vrieze
Attorney-at-Law
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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 Candace Wilkerson
Sent: Monday, February 27, 2023 10:32 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Question about Revocable Living Trust

Hi Listmates,

I’m curious how to deal with this one.  We have a client who wants to leave their trust assets (not just small items of personal property, but financial accounts, etc.) strictly according to a separate Letter of Instructions.  This includes both specific gifts and the residuary trust estate.  Most, if not all, of these beneficiaries will be charitable organizations.

I have told the client that I think the distributions will need to be laid out specifically in the trust language itself, because a separate writing probably will not be legally binding.  I’ve also told them that, of course, TOD accounts can be designated for a specific charitable beneficiary and not transferred into the trust itself.  But the client wants the separate Letter of Instructions because it’s more flexible than changing the terms of the trust when they want to add or delete a charitable beneficiary.

Am I incorrect in believing that such a separate writing will not be considered legally binding?  Or is it enough to say in the trust that, after the Settlor’s death, “the trust estate will be distributed according to the Letter of Instructions dated ____ addressed to ______”?

Thanks for your thoughts.

Best,
Candace Wilkerson

*Candace is available to respond to emails and phone calls between the hours of 7:00 a.m. and 3:00 p.m.  If you have an urgent matter outside that time period, please call our office at the number below.

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Top Ranked Law Firm for 2015 by Fortune Magazine and American Lawyer Media
Candace Wilkerson  | Senior Associate  |  Wong Fleming

9840 Willows Road NE, Suite 200  |  Redmond, WA 98052
Phone: 425.869.4040  |  Fax: 425.869.4050
cwilkerson at wongfleming.com<mailto:cwilkerson at wongfleming.com>

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Before proceeding, please note: If you are not a current client of Wong Fleming, please do not include any information in this e-mail that you or someone else considers to be of a confidential or secret nature. Wong Fleming has no duty to keep confidential any of the information you provide. Neither the transmission nor receipt of your information is considered a request for legal advice, securing legal services or retaining a lawyer. An attorney-client relationship with Wong Fleming or any lawyer at Wong Fleming is not established until and unless Wong Fleming agrees to such a relationship as reflected in a separate writing.

IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (a) avoiding penalties under the Internal Revenue Code or (b) promoting, marketing or recommending to another party any transaction or matter addressed herein.
THIS ELECTRONIC MAIL TRANSMISSION AND ANY ATTACHMENTS MAY CONTAIN PRIVILEGED, CONFIDENTIAL, OR PROPRIETARY INFORMATION INTENDED ONLY FOR THE PERSON(S) NAMED. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR THE AUTHORIZED REPRESENTATIVE OF THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISTRIBUTION, COPYING, OR DISCLOSURE OF THIS COMMUNICATION IS STRICTLY PROHIBITED

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