[WSBAPT] What are the specific requirements for creation of a trust?

[Joshua McKarcher]

Andrekita,

I was immediately hooked by this fact pattern but could not sit down to think about it until now.

I think the word “text” in our electronic wills statute is going to be difficult to overcome, even if this audio-video “record” is authenticated by the testator and two witnesses (if, say they say their names and that they were there for entire video’s making).

But at least I finally had time to dig into 11.98 and I think you at least must dig into the possibility of having an oral trust under Washington law if decedent was at his death domiciled in Washington, as I assume.

Look at http://app.leg.wa.gov/RCW/default.aspx?cite=11.98.014 and then go backward to the provisions regarding creation of a trust.

It strikes me that you very well may get a court to find without stretching anything too far that he was creating a trust without saying the word trust, which I don’t see being required. There seems a clear identification of property, a named trustee, a named beneficiary, etc.

But any case law or persuasive judicial gloss on these provisions above seems likely to be the key. (I went to law school in the other Washington (DC), however, so I don’t know Washington law on this topic at all, and I don’t know the professors and others on this list well enough to ask them to suggest cases.)

Anyhow, you (from this list) "know me by now." I’d write more if I could 🫣😬, as I'm all excited and intrigued. But I’m barely keeping up this week as it is.

If any of that is a start, great. If I've merely excitedly related the most obvious of provisions and starting points to zero benefit, well, then, shoot...😉

Assuming this video and the people involved are legit, of course, then I hope this works. I would love to know what you find out, even if you’re game simply to share a controlling WA case or something.

(Aside: It’s so unfortunate they didn’t know to have someone transcribe his words even in a rudimentary form and do a basic (Washington compliant) electronic will, which would’ve been easily provable even though executed and witnessed abroad with a remote notary from any of our offices or even an online RON service for $50 or so. Alas.)

Godspeed! Best, Josh

Joshua D. McKarcher
McKarcher Law PLLC
537 6th Street
Clarkston, WA 99403
(509) 758-3345
(509) 758-3314 (fax)
josh at mckarcherlaw.com
www.mckarcherlaw.com<http://www.mckarcherlaw.com>
________________________________
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> on behalf of Andrekita Silva <ak at seattle-silvalaw.com>
Sent: Wednesday, February 21, 2024 4:36 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] What are the specific requirements for creation of a trust?

Law Office of
F.ANDREKITA SILVA
_______________________________________________________

February 21, 2024

Listserve,

What are the specific requirements for creation of a trust?

A client of mine (in a guardianship matter), had an appendectomy (while in a foreign country.) The surgery went fine but a day or so later, he took a turn for the worse. His sister flew to keep him company and to care for IP. Client realized he had no Will and that maybe he should write one upon returning home. But, he was deteriorating at such a pace, that he asked to record his wishes while still there at the hospital.  Sister calls notary public who video tapes Client's statement in the presence of 2 witnesses (so, sister, notary, and ambulance driver present).

He indicates his house #72 & his Towing business should be managed by his sister for his son (who is IP). He identifies some other property and says what should happen to it.  Everything else he leaves to IP. He does not mention 2 of his other children. He wants sister to be Guardian for IP.  He dies within an hour.  He says "I love you all. Goodbye." He knew he would die momentarily.

I know this is not a valid Will. But, what is required to create a valid trust?  He never uses the word "trust" "Trustor" or "trustee." No titles changed because he died too soon.  It was clear from the statement that Client was trying to create a WILL. But, Can this recorded oral statement be considered a trust? Can the recorded statement be used to transfer title, at minimum,  to the house and business/business assets to IP? Or, is it just too bad and everything passes by intestate succession?

At this point, it doesn't look like foreign country recognizes oral wills.
(sorry if this is duplicative. I first sent this out using someone elses subject line...)

andrekita
Law Office of F. Andrekita Silva
1325 Fourth Avenue, Suite 940
Seattle, Washington 98101-2509
206-224-8288
ak at seattle-silvalaw.com<mailto:ak at seattle-silvalaw.com>
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