[WSBAPT] Testamentary Charitable Foundation?

Sat Mar 28 11:05:51 PDT 2026

The only way I would even consider doing this is by a testamentary trust that is a charitable foundation, not a "testamentary corporation" that hopefully becomes a charitable foundation.

First, however, I would possibly turn down this client. They may not want the work, but the key question is do they want to make the DECISIONS needed to make the trust inside their will actually work properly?

A good charitable trust can be reasonably dispute-proof with thoughtful planning of who the trustees are and whether they use a separate committee to review requests or donations, etc.

But unless some very experienced person tells you that they know a gift to a CORPORATION not yet formed that will hopefully be charitable can be a deductible gift, I would go with "the law we know works" vs. "different law," and I would build a charitable trust into the will.

Then I would explain to the client how utterly foolish this may be, because they are fully intending (apparently) to leave their entire estate's assets, composition, value, their $30M+ foundation's entire set of terms in the public record in a probate proceeding. I'm sorry, but explained properly, "I just don't get why you would do that."

Sorry if my two cents sound "judgy," but I would rather save YOU the misery Brent describes than give another client out there "exactly what they are asking for," as though lawyers are Starbucks and have some overarching duty to simply "do what the client wants once we tell them we'll represent them," which is nowhere to be found in any ethics rule book or legal opinion anywhere.

Best, Josh

Joshua McKarcher

Attorney, Owner
McKarcher Law PLLC
o: (509) 758-3345
josh at mckarcherlaw.com<mailto:josh at mckarcherlaw.com>

[cid:47188a0e-93d6-4b43-a644-afe0854163e2]
________________________________
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> on behalf of David Faber <david at faberfeinson.com>
Sent: Wednesday, March 25, 2026 2:49 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Testamentary Charitable Foundation?

Thank you for your responses.

Sarah: yes, the client has about $30mil in assets to leave for the purpose of establishing a foundation. I suggested the DAF approach, using our local Jefferson Community Foundation, but they didn't like that idea/want the foundation as a legacy organization.

James: I also suggested that approach, but they declined to do the work during lifetime.

Brent: I couldn't agree more, but as I noted above, my clients don't want the work.

Thank you all again!

Best,
David J. Faber
Faber Feinson PLLC
800 Polk Street, Suite B
Port Townsend, WA 98368
(360) 379-4110

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On Tue, Mar 24, 2026 at 5:30 PM Brent Williams-Ruth <brent at williams-ruthlaw.com<mailto:brent at williams-ruthlaw.com>> wrote:
I do not believe that it would be a problem - however, it make not be the best course of action for timelines.

I have several clients who have established charitable foundations (while alive) and I can advise that it is not a speedy process.  Yes, the actual formation with the WA SOS is fast and YES you can get the tax authorization and EIN, but then it takes some time to get that confirmation and formal recognition as being a qualified charitable organization.

What I don't know and would be interested is how the Washington DOR would treat this. Would the DOR accept a "foundation in formation" to avoid estate tax or would they put it all "pending" waiting to run the tax return until such time as the foundation has been confirmed as a qualified charitable organization.

If it were me, I would simply work with the client to create it NOW. It doesn't need to be fully funded at this point but ensuring that the foundation is truly set up as they wish.....it is easier to do now than after their death.  Plus, it would be beneficial to get the entire team together (CPA, investing etc.) so that they know what will be forthcoming upon passing.

My first charitable foundation was a decedent who owned extensive real estate holdings worth just under $100m. I am eternally grateful that this was established prior to death given how - even with a foundation in existence - the various family members still tried to wrangle for position and control of things.

Best of luck!

Brent Williams-Ruth (pronouns: he/him)
Attorney-At-Law

Law Offices of Brent Williams-Ruth, a division of BWR Consulting, PLLC

Physical Address: 500 S 336th Street, Suite 214; Federal Way, WA 98003

Mailing Address: PO BOX 3319; Federal Way, WA 98063

Office/Scheduling Phone: (253) 285-7751

For All Meetings & Scheduling: info at williams-ruthlaw.com<mailto:info at williams-ruthlaw.com>

e-mail<mailto:Brent at Williams-RuthLaw.com> / website<http://www.williams-ruthlaw.com/> / facebook<http://www.facebook.com/bwrlaw> /

On Tue, Mar 24, 2026 at 3:10 PM David Faber <david at faberfeinson.com<mailto:david at faberfeinson.com>> wrote:
A client wants to have a charitable foundation established by their estate at their death, and to leave their entire estate to the charitable foundation. I can't see any reason why this would be a problem, but this is a case of first impression for me, so I don't know what I don't know. Would there be any issue with a testamentary charitable foundation, so long as the Will lays out the charitable purposes for which the foundation would be established, directs the PR to file for a Washington State nonprofit corporation and to seek 501(c)(3) not-for-profit status, and leaves their estate to the charitable foundation? Would the gift to a not-yet-existent charitable entity be estate tax exempt?

Thank you.

Best,
David J. Faber
Faber Feinson PLLC
800 Polk Street, Suite B
Port Townsend, WA 98368
(360) 379-4110

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