[WSBAPT] Clayton QTIP Election at First Death

Fri Jun 26 13:06:28 PDT 2026

I’m very sorry not to answer yes or no, but I must refer you to the IRC definition of an interested party, plain and simple. “Usually,” no, a family member is not able to just “be” disinterested. But I’m not going to answer because that is part of the analysis one doing the planning would need to be familiar with if putting these kinds of plans together without putting themselves at risk. I truly don’t know how else to answer you wisely and ethically while still being responsive. All my best, Josh

Joshua McKarcher
Attorney, Owner
McKarcher Law PLLC
o: (509) 758-3345
josh at mckarcherlaw.com<mailto:josh at mckarcherlaw.com>
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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 12:01 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Clayton QTIP Election at First Death

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<mailto: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<mailto:josh at mckarcherlaw.com>
[A close-up of a logo  AI-generated content may be incorrect.]<https://mckarcherlaw.com/>
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 Robin Swanson <robin at securelegallegacy.com<mailto:robin at securelegallegacy.com>>
Date: Friday, June 26, 2026 at 7:54 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto: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<mailto: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<mailto:josh at mckarcherlaw.com>

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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 Robin Swanson <robin at securelegallegacy.com<mailto:robin at securelegallegacy.com>>
Sent: Thursday, 25 June 2026 13:10:22
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto: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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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 privileged information. If you are not the intended recipient(s), any unauthorized review, use, copying, disclosure or distribution is prohibited. If you are not the intended recipient(s), please contact the sender by reply e-mail immediately and destroy the original and all copies (including electronic versions) of this message and any of its attachments.

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