[WSBAPT] Deed/Title Question

Tue Mar 7 18:01:14 PST 2023

Absolutely must agree. I respect Jen's posting about "effective dates," but I believe the statutory analysis reveals that those relate to the "effective date" for triggering various limitations provided by law, such as the famous rule against perpetuities and other limitations that are designed to limit the time that a given trust can "do things."

Thus it is logical that the "effective date" for an irrevocable trust is its agreement date - because it awaits nobody's death to start "doing" its substantial work. But a revocable living trust - being revocable until the moment of death, like a will - does not "do things" equivalent to what an irrevocable trust does - indeed it generally does not even become irrevocable - until the relevant grantor's death.

These issues are significantly distinct from the "date of trust" such as for ASSET TITLING purposes. Asset titling is an effort in IDENTIFICATION, not an effort in time limitation or clock starting.

Thus, the trust certificate statute's reference to the date of the instrument's execution. If a will dated 1/1/1982 and probated by order dated 4/1/2021 creates a trust that is declared and funded on 6/1/2023, I would identify that trust as "XYZ Testamentary Trust u/w/d 1/1/1982" (meaning "under will dated" -- substituting a "w" for the "a" in u/a/d for "under agreement dated ").

In a real property deed, I would be kind enough in prefatory language to refer to the probate court and case number where the subject will could be found, but I would not TITLE the trust with a date other than the will's date, because that's the date on the instrument I'm asking third parties to refer to as proof of the trustee's authority to act.

And it's more objective: It makes it hard for anyone to argue with me about dates considering the certification statute's requirement for the trust instrument execution date.

All the best, Josh

Joshua D. McKarcher
McKarcher Law PLLC
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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 <heatherd at westseattlelaw.com<mailto:heatherd at westseattlelaw.com>>
Sent: Tuesday, March 7, 2023 6:09:26 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Deed/Title Question

I don't believe the "effective date" is the relevant question but the identity of the trust. Specifically, the date of the agreement under which the trust was established. If the deed references a 2015 trust, folks are going to be looking for a trust document signed in 2015.

In a review of the trust certification statute http://app.leg.wa.gov/RCW/default.aspx?cite=11.98.075 it seems relevant that this statute refers to "the date the trust instrument was executed" which in the instant case is 2007. The clarity that should be on the deed, or accounts is that they are part of the exemption trust share, distinct from the original revocable trust.

Heather

Heather S. de Vrieze
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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 Doehne, Jen
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To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Deed/Title Question

RCW 11.98.160<http://app.leg.wa.gov/RCW/default.aspx?cite=11.98.160>

Effective date of irrevocable inter vivos trust-Effective date of revocable inter vivos or testamentary trust.

For the purposes of RCW 11.98.130<http://app.leg.wa.gov/RCW/default.aspx?cite=11.98.130> through 11.98.150<http://app.leg.wa.gov/RCW/default.aspx?cite=11.98.150> the effective date of an instrument purporting to create an irrevocable inter vivos trust is the date on which it is executed by the trustor, and the effective date of an instrument purporting to create either a revocable inter vivos trust or a testamentary trust is the date of the trustor's or testator's death.

RCW 11.98.900<http://app.leg.wa.gov/RCW/default.aspx?cite=11.98.900>

Application of RCW 11.98.130<http://app.leg.wa.gov/RCW/default.aspx?cite=11.98.130> through 11.98.160<http://app.leg.wa.gov/RCW/default.aspx?cite=11.98.160>-RCW 11.68.090<http://app.leg.wa.gov/RCW/default.aspx?cite=11.68.090> prevails.

(1) The provisions of RCW 11.98.130<http://app.leg.wa.gov/RCW/default.aspx?cite=11.98.130> through 11.98.160<http://app.leg.wa.gov/RCW/default.aspx?cite=11.98.160> are applicable to any instrument purporting to create a trust regardless of the date such instrument bears, unless it has been previously adjudicated in the courts of this state.

(2) To the extent that this chapter is in conflict with RCW 11.68.090<http://app.leg.wa.gov/RCW/default.aspx?cite=11.68.090>, RCW 11.68.090<http://app.leg.wa.gov/RCW/default.aspx?cite=11.68.090> prevails.

Jen Doehne, Attorney
Pronouns she/her/hers
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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 Philip N. Jones
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Subject: Re: [WSBAPT] Deed/Title Question

I rarely disagree with Diane, but I will stick my neck out this time.

Let's say that my brother Sam died, and I am the trustee.  Sam signed his RLT in 2007, and died in 2015.

The first deed should be from Phil Jones, successor trustee of the Sam Jones RLT u/a/d 1/1/07 to Phil Jones, trustee of the Sam Jones Exemption Trust u/a/d 1/1/07.

Both trusts are controlled by the same piece of paper, the same governing document, and the date of that document never changes.  The date of funding is not relevant.  One trust is governed by article IV and one is governed by article VII.

When someone goes to a title company or a bank and is asked for the governing document of either trust, the same piece of paper will be handed over.

Phil Jones

Philip N. Jones

Duffy Kekel LLP

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Portland, OR 97204

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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
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Subject: Re: [WSBAPT] Deed/Title Question

Maura, I'm not fully sure I understand the facts but if the exemption trust was funded by real property owned by the original RLT, the transfer deed to the exemption trust should reflect original date as remaining trustee is transferring from that master trust to new 2015 trust.

When Trustee of exemption trust transfers it will show a reference to the 2015 deed.

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 Maura McCoy
Sent: Monday, March 6, 2023 3:51 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Deed/Title Question

This is a deed/title question - we have a client who is the sole beneficiary of her parents' trust. The parents' underlying RLT was created in 2007 and fully funded.

Dad died in 2015, at which time the exemption trust was created. Real property was funded to the exemption trust, but the date of the exemption trust on the deed is from the ORIGINAL RLT date (2007, rather than 2015). All other accounts held in the exemption trust also have the original trust date. The certificate of trust from the exemption trust also has the original trust date. Mom is now deceased and we are administering the trust and noticed the error on the deed.

Thoughts? Does this need to be corrected on the deed, or is the original trust date sufficient for title purposes?

Maura Senecal McCoy | Associate Attorney
(she/her/hers)

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