[WSBAPT] Unusual Codicil Distribution Scheme Question

[Eric Nelsen]

When I’m looking to protect a PR, I have two standard avenues: either everyone agrees to a resolution (TEDRA agreement), or I petition the court for an order approving the PR’s intended act. I agree that a TEDRA agreement between beneficiaries 1-5 is the best solution. But if everyone can’t agree, then the PR could have the vote performed by beneficiaries 1-4, and then petition the court for an order confirming the will has been properly followed and instructing the PR to give beneficiary 5 $X or Y% or whatever, pursuant to the vote. Give notice and an opportunity to be heard to the people opposing the decision, and let them have their day in court.

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 <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Ryan Castle
Sent: Friday, February 7, 2025 9:13 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Unusual Codicil Distribution Scheme Question

OK this would make a good bar exam question maybe:

I represent a PR in a large WA testate estate. PR is daughter of deceased. No spouse. PR just appointed by court, no bond, nonintervention. Decedent executed valid Will with attorney representation. Then years later decedent executed valid codicil without assistance of attorney (!!!). The Codicil has a horrible distribution scheme that reads:

Beneficiary 5 "to receive an amount agreed upon by" PR (also Beneficiary1), Beneficiary 2, Beneficiary 3, and Beneficiary 4 "by mutual decision. PR (Beneficiary 1) is the tie breaker."

Beneficiary 5's gift would come out of residuary, thereby reducing gifts of other residuary beneficiaries listed in Will. Of the "voting" benes, only bene 4 is a residuary beneficiary. My concern obviously is the discretion given to my client PR who has fiduciary duties to estate/beneficiaries. I am inclined to advise that my client simply "vote" to follow the original will distribution scheme in order to adhere to her fiduciary duties. The other "voting" beneficiaries seem inclined to do the same but unsure at this point.

Any advice on how to handle this horribly drafted clause to protect my client? Best if they all simply abstain from voting, assuming they all agree to do that? I assume the "voting" Benes should document their decision via TEDRA Agreement?

--

Ryan Castle (he/him)
Castle Law Firm, PLLC
Managing Attorney
T: 360-592-3504
1313 E. Maple St., Suite 790
Bellingham, WA 98225
https://ryancastlelawfirm.com/


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