[WSBAPT] Clayton QTIP Election at First Death

[Robin Swanson]

Hi Joshua,

Thank you for your message. The parents prefer that he not work with any
professional unless son decides it is necessary. However, under your
suggestion, I could name the son as an independent trustee and mandate that
he also work with a qualified legal and tax counsel. The son is named the
independent trustee, but he isn't truly independent because he must seek
professional advice and not sign the tax return that would flag the IRS

I've explained that the IRS does not want to see an independent trustee who
is also a beneficiary/son, but they may be happy with the appearance of the
title.

Thanks,

On Fri, Jun 26, 2026 at 12:41 AM Joshua McKarcher <josh at mckarcherlaw.com>
wrote:

> Well, hmm, I guess as distressing as it may seem potentially to position
> son against parent or siblings, I'm not sure any law *forbids* the
> "Clayton electing trustee" to be an interested trustee vs a non-interested
> (independent) trustee.
>
> If he worked with qualified legal and tax counsel and everyone was onboard
> with the strategy after first spouse's death, I would have to look
> "something" up in search of a reason that he would be disqualified.
>
> If someone else embarrasses me with a contrary answer that proves mine
> wrong, I shall humbly offer up a template Minor Child POA as my gift to
> them.
>
> Best, Josh
>
> *Joshua McKarcher*
>
> *Attorney, Owner*
> McKarcher Law PLLC
> o: (509) 758-3345
> *josh at mckarcherlaw.com <josh at mckarcherlaw.com>*
>
> [image: signatureImage]
> ------------------------------
> *From:* wsbapt-bounces at lists.wsbarppt.com <
> wsbapt-bounces at lists.wsbarppt.com> on behalf of Robin Swanson <
> robin at securelegallegacy.com>
> *Sent:* Thursday, 25 June 2026 13:10:22
> *To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> *Subject:* [WSBAPT] Clayton QTIP Election at First Death
>
> Hi Listmates,
>
> I'm drafting a revocable living trust for a married couple who are the
> trustors and initial trustees. They want to name their son, who is also a
> beneficiary of the trust, to make or direct the Clayton QTIP election at
> the first spouse’s death. I understand that using an independent trustee
> who is not a beneficiary is recommended because of conflict and fiduciary
> concerns. Can someone please explain whether a beneficiary/son can serve in
> that role under Washington law? They are not satisfied with my general
> answer and want to name their son.
>
> Thank you,
> --
>
> Robin Swanson
>
> Secure Legal Legacy, PLLC
>
> Attorney at Law
>
>
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-- 

Robin Swanson

Secure Legal Legacy, PLLC

Attorney at Law


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