[WSBAPT] The chart

Fri Sep 1 17:00:58 PDT 2023

Okay, whew! 😉

(Gadzooks, I learned on a recent visit there, is local to Phoenix, and thus has a stand at Diamondbacks stadium. And, my oh my, do they have a grapefruit margarita and a plate of nachos that are unlike any other anywhere. God bless the usher who suggested it to me. So, there was pedigree to my ridiculous suggestion . . . and it made me hungry and thirsty using it . . . )

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Eric Nelsen
Sent: Friday, September 1, 2023 4:23 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] The chart

Oh heck, I just meant that we’re struck with it if we use the term “by representation” in a Will without further explanation. Of course a Will can redefine the term or better yet, use a completely different term and define that different term carefully. By Gadzooks!

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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: Friday, September 1, 2023 3:53 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] The chart

Eric,

You say “we are bound by the definition of ‘representation’ in RCW 11.02.005(17)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.02.005>, as another poster mentioned. And case law makes ‘per stirpes’ equivalent to that.”

You mean in intestacy or with respect to documents that use the terms without defining them, right? If I’m incorrect, on what basis are we “stuck” with them superior to a testator’s or trustor’s intentions expressed in a valid will or trust?

Thanks, Josh

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 TJW
Sent: Friday, September 1, 2023 3:28 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] The chart

Nicely done, Eric……… “per usual” which is not a probate term. 😊

Sincerely,

Tom

Thomas J. Westbrook
Attorney at Law

[cid:image001.jpg at 01D9DCF5.DEEA5E20]
324 West Bay Drive NW, Suite 201
Olympia, WA 98502
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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 Eric Nelsen
Sent: Friday, September 01, 2023 3:06 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] The chart

This chart is not right under Washington law—there is no difference between “per stirpes” and “by representation” in Washington: the terms mean the same thing. Johnson v. Huntley, 39 Wn.2d 499, 504, 236 P.2d 776 (1951). They both mean basically per stirpes, but with a specific Washington modification to the traditional per stirpes: the per stirpes does not kick in until the first generation where there is a living heir.

Washington per stirpes and by right of representation: If a decedent has any living children, then division starts there, equal shares to each living child, and to each deceased child who had issue. If decedent has no living children, then division starts at grandchildren, equal shares to each living grandchild, and to each deceased grandchild who had issue.

Traditional per stirpes: Equal shares always starts at level of decedent’s children, even if none of them are alive. Equal shares to each living child and each deceased child who had issue.

There’s a great explanation of this, with charts, in Reutlinger’s Washington Law of Wills and Intestate Succession, 3d ed., Ch. 1(D) (WSBA 2018).

This chart’s “by representation” actually follows the Uniform Probate Code, which refers to the scheme as “per capita at each generation.” Washington’s scheme is apparently called by the UPC “per capita with representation” to distinguish it from traditional per stirpes.

And to put a final stake in it, we are bound by the definition of “representation” in RCW 11.02.005(17)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.02.005>, as another poster mentioned. And case law makes “per stirpes” equivalent to that.

So: As far as Washington is concerned, the terms “per stirpes” and “by representation” mean the same thing, but they mean “per capita with representation” and are not equivalent to “per stirpes” or “by representation” as those terms are used in other jurisdictions.

I just realized: I’ve never considered this issue when interpreting a foreign Will. I guess will have to think about that now.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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 Susan Donahue
Sent: Friday, September 1, 2023 1:49 PM
To: wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] The chart

[cid:image002.jpg at 01D9DCF5.DEEA5E20]

Susan Donahue
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