[WSBAPT] Resolving Potential Conflict Between Will and TODD

Tue Jan 30 14:12:01 PST 2024

I think Diane is saying that the residue of the estate is first in line to
pay expenses & creditors(RCW 11.10), which may entirely consume the residue.
Only after that will specific bequests and then non-probate assets be liable
for expenses.  So by using a POD on one account or a TODD for one piece of
property and making them non-probate assets that go straight to the
beneficiary without helping to pay expenses, a client can create conflict in
the family.  These tools can affect different heirs differently.

Lenard L Wittlake, PLLC

Attorney & Counselor at Law

22 East Poplar Street, Suite 202

P.O. Box 1233

Walla Walla, WA 99362

(509) 529-1529 voice

(509) 850-3515 fax

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From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Diane J. Kiepe
Sent: Tuesday, January 30, 2024 10:05 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Resolving Potential Conflict Between Will and TODD

When I visit with clients who are doing payable on death transfers and
transfers under the Will, I let them know that expenses will come out of the
estate which effects the takers under the Will (unless you draft around that
but it's difficult to go after funds/property after paid out).  I am not
sure I am clear in how I am trying to make the point so maybe someone can be
more eloquent then I or we can chat over the phone.

Diane J. Kiepe

Douglas Eden, P.S.

717 W. Sprague Ave., Suite 1500

Spokane, WA  99201

 <mailto:djkiepe at depdslaw.com> djkiepe at depdslaw.com

509-455-5300

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>
On Behalf Of Mark Anderson
Sent: Tuesday, January 30, 2024 9:32 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Resolving Potential Conflict Between Will and TODD

Diane - thank you for the recommendation about "after-recorded" TODDs.
Perhaps my coffee has not kicked in yet, but could you restate the concerns
you expressed in your 2nd paragraph?  I do want to make sure that I advise
my client appropriately.

Mark B. Anderson
ANDERSON LAW FIRM PLLC
821 Dock St  Ste 209  PMB 4-12
Tacoma, Washington 98402
+1 253-327-1750
+1 253-327-1751 (fax)
 <mailto:marka at mbaesq.com> marka at mbaesq.com
 <http://www.mbaesq.com/> www.mbaesq.com

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>
On Behalf Of Diane J. Kiepe
Sent: 01/29/2024 11:25 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Resolving Potential Conflict Between Will and TODD

I think I would change the language slightly if you think after the codicil
more TODD may be done because you are noting after the Will and before the
first Codicil.  This would not cover any TODD after the First Codicil.  I
also might add to the language recording details of the properties you know
have been transferred because the TODD has to be filed prior to death
anyway.

What needs to be clear though, in my humble opinion, is that the takers
under the Will are the first to have their shares diminished for estate
expenses and those shares can be eliminated entirely in the worst-case
scenario, before the TODD property is affected.  This may or may not be okay
with your client.  I have seen TOD and POD accounts create conflicts in
family when the receiver (legally) takes and keeps the cash.

Good Luck.

Diane J. Kiepe

Douglas Eden, P.S.

717 W. Sprague Ave., Suite 1500

Spokane, WA  99201

 <mailto:djkiepe at depdslaw.com> djkiepe at depdslaw.com

509-455-5300

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>
On Behalf Of Mark Anderson
Sent: Friday, January 26, 2024 10:47 AM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] Resolving Potential Conflict Between Will and TODD

Dear All:

Happy Friday!

John owns a parcel of real property.  John has a Will that sets forth the
distribution of his Estate upon his death.  Subsequent to executing that
Will, John executed and caused to be recorded a Transfer on Death Deed for
his real property.  The Grantee under the Transfer on Death Deed is a person
other than someone who would otherwise take under John's Will (i.e., not an
heir or devisee).

As has been discussed before, there appears to be an issue of which takes
precedence: the Will or the Transfer on Death Deed.

In an attempt to proactively address this issue, I drafted the following
language to include in a Codicil to John's Will:

After execution of my Will and prior to the execution of this First Codicil,
I executed and caused to be recorded one or more Transfer on Death Deeds
made pursuant to Chapter 64.80 RCW with respect to certain real property.
It is my desire that any such Transfer on Death Deeds that have not been
revoked supersede a) any contrary provision of my Will, and b) any contrary
effect of RCW 11.04.250 with respect to vesting.

Questions:

Assuming the Codicil to be properly executed and attested to, should this
language be sufficient to overcome the apparent conflict between the Will
and the Transfer on Death Deed?

Would you recommend that the Codicil also include a list and legal
description of each piece of real property?

Any other suggestions or insights?

Thanks.

Mark B. Anderson
ANDERSON LAW FIRM PLLC
821 Dock St  Ste 209  PMB 4-12
Tacoma, Washington 98402
+1 253-327-1750
+1 253-327-1751 (fax)
 <mailto:marka at mbaesq.com> marka at mbaesq.com
 <http://www.mbaesq.com/> www.mbaesq.com

CONFIDENTIALITY NOTICE
This transmission is confidential and is intended solely for the use of the
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