[WSBAPT] Oregon Brethren

[Joshua McKarcher]

I will push back in my well-meaning but perhaps irritating and even potentially unhelpful way:

Unless an Oregon lawyer has a better idea – like a TODD that triggers after they both die and is “90% likely” to be super straightforward (like to an only child; unless of course they and their only child die together driving to their Oregon property one day, and aren’t we the ones they hire to plan for even that scenario?) – then I would push them on “Why NOT an RLT?”

I don’t understand reluctance to RLTs. And I sometimes don’t understand lawyers’ willingness to just “do what the client wants” if “what the client wants” is highly likely to cause more trouble down the road that could give heirs/beneficiaries a reason to point fingers back at YOU as the preparer.

I just can’t figure why they’d oppose a simple RLT if they understand properly how many scenarios an RLT done properly can “solve for.” And if they understand it doesn’t do a thing to remove power over principal and interest; they keep full power of revocation, amendment, and restatement; it requires no EIN or additional tax work; and could even be left “unfunded” as to Washington assets if they really don’t want to retitle ANYTHING except the Oregon property.

They’re going to have to record something in Oregon to achieve any given probate-avoidance solution – is it cheaper or easier to record a TODD than a deed to RLT?

I know one of them requires nearly perfect language if it involves more than 2 grantees, and has something like a 4-part statutory test for who owns what depending on [oh no I’ve gone cross-eyed]; and I know the other requires a copy/paste of the grantee’s name with otherwise boring, standard deed language.

Anyhow, I get a little grumpy at this. The law and our profession has devised a perfectly useful tool to solve for this. Just because some people are afraid of the word “trust” or had a bad experience with one, so what? That had NOTHING to do with it being a “trust,” but with the drafting, implementation, counsel given (or likely NOT given) the trustee, the awful beneficiaries. ALL OF WHICH are equally present in a “simple” WILL-based plan intended for “simple” probate.

So, anyhow, Paul, if you have any room for persuasion, I’d try that first. If they find ANOTHER Oregon property one day – or a California one – or a Texas or Florida one – well, voila!, their “state-specific” estate planning is “done” by drafting a deed to their RLT in ANY of those states that just adopts whatever convention or special language that state requires for deeds to trusts. No additional probate-planning needed. “Why, THANK YOU, Paul! How wonderful you are! Let’s DO it!”

(See? I am the eternal optimist. They’ll LOVE you for it! I believe! .  . . The inimitable Bruce Moen and I had a great chat lately about our different orientations to questions like IOLTA account deposits. He’s 95% in litigation, and I’m 0% in litigation, so we are good for each other, ha ha! It would absolutely make my DAY if he replied to say all the reasons they should avoid an RLT! 😉 And, yes, that is a joke.)

Happy Almost Weekend! Best, Josh

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Paul Neumiller
Sent: Thursday, May 11, 2023 4:11 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Oregon Brethren

I am putting together an estate plan for a WA couple who still own a house in Oregon.  While the couple are healthy and plan on selling the house in about 1 to 3 years, you never know what could happen and one spouse dies.  The couple do not want to use a revocable trust but want to have something in place in Oregon to avoid having to probate their estate in Oregon just to take care of the house.  Is there some document or method to avoid an Oregon probate in case one (or both) spouses dies before the house is sold?   Does Oregon have a transfer on death deed process we could use or some other document?


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