[WSBAPT] Clayton QTIP Election at First Death

Fri Jun 26 12:00:38 PDT 2026

I think it might be best to allow the surviving spouse to name their son as
co-trustee for QTIP Election analysis and collaboration, but not name
either of them as a disinterested trustee, because both are "interested
trustees."

I will mandate that they name another co-trustee as a Disinterested Trustee
to make the final QTIP election and sign the tax returns with the proper
election, etc.

Question: Can a family member *who is not a beneficiary under the RLT* be
named a Disinterested Trustee or should they only use a CPA, an attorney
(other than the drafting attorney), or a corporate trustee?

Thank you,

On Fri, Jun 26, 2026 at 1:36 PM Joshua McKarcher <josh at mckarcherlaw.com>
wrote:

> Oh gosh, well, this is more complicated in my view: the son IS an
> “interested” party under IRS code, not by designation or labeling in the
> document. You can “label” him anything you want, but if he is related to
> the trustor/grantor (or another party for the relevant analysis) he is
> “interested.” And an Independent is simply “one who is not ‘interested.’” I
> hope this works out for you and the client, as it sounds like it may have
> some thorns they are wishing were not thorns but nonetheless are . . .
> thorns. All my best, Josh
>
>
> *Joshua McKarcher*
> *Attorney, Owner*
> McKarcher Law PLLC
> o: (509) 758-3345
> *josh at mckarcherlaw.com* <josh at mckarcherlaw.com>
> *[image: A close-up of a logo AI-generated content may be incorrect.]*
> <https://mckarcherlaw.com/>
> *From: *wsbapt-bounces at lists.wsbarppt.com <
> wsbapt-bounces at lists.wsbarppt.com> on behalf of Robin Swanson <
> robin at securelegallegacy.com>
> *Date: *Friday, June 26, 2026 at 7:54 AM
> *To: *WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> *Subject: *Re: [WSBAPT] Clayton QTIP Election at First Death
>
> 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
>
>
> **NOTICE: This e-mail message, including any attachments hereto, is for
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-- 

Robin Swanson

Secure Legal Legacy, PLLC

Attorney at Law

**NOTICE: This e-mail message, including any attachments hereto, is for the
sole use of the intended recipient(s) and may contain confidential and/or
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