[WSBARP] Blended Families

[Jim Doran]

Eric:

Ok.  This is good.  I think the language would be contractual in that both
agree to the Trust upon the death of the first of the spouses.  Hence, a
combination of both approaches, contract and trust.

Does anyone have language as to that effect?

Jim Doran

James R. Doran
Attorney at Law
100 E. Pine Street -  Suite 205
Bellingham, WA 98225
(360)393-9506
jim at doranlegal.com
www.doranlegal.com

On Thu, Apr 26, 2018 at 3:28 PM, Eric Nelsen <Eric at sayrelawoffices.com>
wrote:

> Jim--there was a discussion was back in 2015 I think. I found this in my
> sent mail from one of my previous posts:
>
>
>
> My primary concern always is identification and control of the decedent's
> assets that are supposed to eventually go to the decedent's kids, through
> an unknown amount of time until the surviving spouse dies. My secondary
> concern is flexibility for the surviving spouse to accommodate changed
> circumstances in a way that fairly balances the surviving spouse's
> interests with that of the decedent's kids.
>
>
>
> When we last had a listserve discussion about Will contracts (in the
> context of mutual Wills), I copied into my files the following comments
> from others:
>
>
>
> Mutual wills are clumsy and the law relating to them is not well
> developed.  If there's a possibility that one of the spouses might remarry
> following the first death, consider how the survivor's mutual will would
> work, in light of the new marriage.  E.g., if surviving wife remarries and
> doesn't make a new will, upon her death the 2nd husband becomes entitled to
> that share of the wife's estate as if she had died intestate.  That would
> blow up any plan envisioned by mutual wills.  Or, suppose wife dies,
> surviving husband remarries; the new wife then dies and leaves her estate
> to the husband.  Can surviving husband bequeath any of the assets that he
> inherited from the 2nd wife to her kids?  Is the surviving spouse precluded
> from making non probate transfers?  Gifts?
>
>
>
> Just food for thought.  Trusts are more flexible-they can account for all
> the assets acquired by the couple, without locking in a survivor with
> respect to assets acquired with a new spouse.
>
>
>
> And irrevocable means that it can be problematic for surviving spouse to
> deal with changes in the circumstances of children, such as the need for a
> special needs trust for a subsequently disabled child; or other
> circumstances that require change. I would at least retain the ability to
> change provisions as to one's own children; since the purpose is (I assume)
> to prevent the children of deceased spouse from being disinherited.
>
>
>
> If for some reason I do conclude that mutual Wills might be the way to go,
> my starting point is the following draft language, subject of course to
> editing as I consider the specific circumstances and the priorities of the
> client:
>
>
>
> This Last Will and Testament is executed pursuant to an agreement with the
> Testator's spouse that (1) they shall execute and maintain mutual Wills
> that make reciprocal provisions for disposition of property after they both
> are deceased as set forth in this Last Will and Testament, and that (2)
> after the death of the first of them, the Last Will and Testament of the
> survivor shall be irrevocable as to disposition of (a) all property that
> was community property at the time of the first spouse's death and the
> rents, issues, profits, and proceeds thereof, and (b) any and all other
> property received by the survivor from the first spouse to die, whether
> under the Will or by non-probate transfer or otherwise, and the rents,
> issues, profits, and proceeds thereof. By executing this Last Will and
> Testament, the Testator acknowledges the existence of said agreement
> between the spouses, and intends to be bound thereby.
>
>
>
> Have the other spouse sign under this contract language, on the testator's
> Will, so there is contemporaneous acknowledgment of the contract by both
> parties.
>
>
>
> A major problem I see with this draft language is the rat's nest of
> asset-tracing that has to be done when the surviving spouse dies. It's a
> huge opportunity for litigation and a great way to ruin relationships. Thus
> my preference for segregation via a trust when the first spouse dies; it
> eliminates the need to trace assets.
>
>
>
> Sincerely,
>
>
>
> Eric
>
>
>
> Eric C. Nelsen
>
> SAYRE LAW OFFICES, PLLC
>
> 1417 31st Ave South
>
> Seattle WA  98144-3909
>
> phone 206-625-0092
>
> fax 206-625-9040
>
>
>
> *From:* wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.
> wsbarppt.com] *On Behalf Of *Jim Doran
> *Sent:* Thursday, April 26, 2018 2:37 PM
> *To:* WSBA Real Property Listserv
> *Subject:* [WSBARP] Blended Families
>
>
>
> Listies:
>
>
>
> I am pretty sure we have been over this matter before.  but let me ask a
> simple question regarding blended families.
>
>
>
> Isn't it the easiest way to deal with property owned as CP in a blended
> family situation for each spouse to make their Will out to give each one's
> CP interest to their own children AND to then execute a contract to NOT
> change the Wills upon the death of the first of them.  Then give a copy of
> the Will and contract to each side of the blended family so that the
> "beneficiaries" will be able to make sure that the contract is followed.
> The beneficiaries would have standing to enforce the contract, if need be.
>
>
>
> very other approach seems to be rather difficult.
>
>
>
> Thank you.
>
>
>
> Jim Doran
>
>
> James R. Doran
>
> Attorney at Law
>
> 100 E. Pine Street -  Suite 205
>
> Bellingham, WA 98225
> (360)393-9506
>
> jim at doranlegal.com
>
> www.doranlegal.com
>
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