[WSBAPT] Resolving Potential Conflict Between Will and TODD

[Mark Anderson]

Thank you all for the explanations.  I consider myself better educated now.
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)
marka at mbaesq.com<mailto:marka at mbaesq.com>
www.mbaesq.com<http://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: 01/30/2024 2:21 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Resolving Potential Conflict Between Will and TODD

Thank you - I knew someone could state it better - it's been a long, long two weeks.


Diane J. Kiepe
Douglas Eden, P.S.
717 W. Sprague Ave., Suite 1500
Spokane, WA  99201
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>
509-455-5300

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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 Lenard Wittlake
Sent: Tuesday, January 30, 2024 2:12 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Resolving Potential Conflict Between Will and TODD

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
Lenard at wittlakelaw.com<mailto:Lenard at wittlakelaw.com>

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From: wsbapt-bounces at lists.wsbarppt.com<mailto: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
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>
509-455-5300

KINDLY ALLOW 2-4 WORKING DAYS TO RECEIVE A RESPONSE TO NON-URGENT EMAILS.  FEEL FREE TO SEND YOUR EMAIL (OR RESEND YOUR EMAIL AS THE CASE MAY BE) MARKED URGENT IN THE SUBJECT LINE.


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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 Mark Anderson
Sent: Tuesday, January 30, 2024 9:32 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto: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)
marka at mbaesq.com<mailto:marka at mbaesq.com>
www.mbaesq.com<http://www.mbaesq.com/>
CONFIDENTIALITY NOTICE
This transmission is confidential and is intended solely for the use of the individual named recipient. It may be protected by the attorney-client privilege, work product doctrine, or other confidentiality protection. If you are not the intended recipient, or the person responsible to deliver it to the intended recipient, be advised that any dissemination, distribution, or copying of this communication is prohibited. If you have received this transmission in error, please immediately notify the sender via e-mail or by telephone at (253) 327-1750 that you have received the message in error, and then delete it. Thank you.

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 Diane J. Kiepe
Sent: 01/29/2024 11:25 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto: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
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>
509-455-5300

KINDLY ALLOW 2-4 WORKING DAYS TO RECEIVE A RESPONSE TO NON-URGENT EMAILS.  FEEL FREE TO SEND YOUR EMAIL (OR RESEND YOUR EMAIL AS THE CASE MAY BE) MARKED URGENT IN THE SUBJECT LINE.


DISCLAIMER: the preceding message and any attachments may contain confidential information protected by law, the attorney-client privilege or other privilege.  This communication is intended to be private and may not be recorded or copied without the consent of the author.  If you believe this message has been sent in error, REPLY to sender and then DELETE this message.  Thank you.



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 Mark Anderson
Sent: Friday, January 26, 2024 10:47 AM
To: wsbapt at lists.wsbarppt.com<mailto: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)
marka at mbaesq.com<mailto:marka at mbaesq.com>
www.mbaesq.com<http://www.mbaesq.com/>
CONFIDENTIALITY NOTICE
This transmission is confidential and is intended solely for the use of the individual named recipient. It may be protected by the attorney-client privilege, work product doctrine, or other confidentiality protection. If you are not the intended recipient, or the person responsible to deliver it to the intended recipient, be advised that any dissemination, distribution, or copying of this communication is prohibited. If you have received this transmission in error, please immediately notify the sender via e-mail or by telephone at (253) 327-1750 that you have received the message in error, and then delete it. Thank you.

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