[WSBAPT] Power of Executor - beneficiary dealing with addiction

[Mark Vohr]

Brent –

            In our experience, the short answer is no – the executor does not have the option to convey under alternative means.  However (and there is often a however) there is always the possibility of getting the beneficiary to agree to have their distribution put into trust.  We have had happen on occasion simply by agreement when the beneficiary has some clarity of insight into their own situation.  If the beneficiary is not agreeable, then a little more effort is involved as you are going to have to engage the conservator statutes to get there.  Under the former guardianship statutes, addiction was a basis for a finding of incapacity.  It is not expressly stated in the UGA, but the substantial risk of harm because of addiction is still the route one goes to get there.

            What your client is going to need is clear and convincing evidence of substantial risk or harm due to addiction. This is important both because it is the required burden of proof and one does not want to risk a finding that the petition was filed in bad faith.  So, solid investigation is essential, and one needs to have clear and convincing evidence to support a substantial risk of harm.  Under this plan, you may not end up with a conservatorship as a trust is a perfectly suitable less restrictive alternative provided the beneficiary can execute one and agrees to a trust as an alternative to a conservatorship.  Under that scenario the court would dismiss the conservatorship petition for the less restrictive alternative.

            Hope that helps.  Always curious to know what others think of this dilemma.

Regards,

Mark

Mark C. Vohr, J.D. CPGC
Ohana Fiduciary Corporation
A Washington Trust Company
155 NE 100th St., Suite 209
Seattle, WA  98125
Telephone:  (206) 782-1189

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Brent Williams-Ruth
Sent: Wednesday, October 11, 2023 10:23 AM
To: WSBA Probate & Trust Listserv <WSBAPT at lists.wsbarppt.com>
Subject: [WSBAPT] Power of Executor - beneficiary dealing with addiction

Greetings List Member -

I was looking through 11.48 et seq and not finding what I was hoping for......hoping someone may be able to assist with some directional guidance.

Have a simple estate, everything is going great, except one of the beneficiaries is in the midst of a substance abuse battle and they are not winning (currently). The Executor is concerned about giving this person approximately $300k in the form of a cashier's check.

The Will was one created by a low-cost provider and gives no express powers or authorization to make any adjustments to how an inheritance should be conveyed.

Short of going to court and establishing a conservatorship-style situation. Is there statutory authority for an Executor to convey through alternate means?

Appreciate any guidance!

Brent

Brent Williams-Ruth (pronouns: he/him)
Attorney-At-Law

Law Offices of Brent Williams-Ruth, a division of BWR Consulting, PLLC

Physical Address: 500 S 336th Street, Suite 214; Federal Way, WA 98003

**EFFECTIVE IMMEDIATELY** All mail sent through the USPS should be sent to the following address: PO BOX 3319; Federal Way, WA 98063

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