[WSBARP] WSBARP Digest, Vol 46, Issue 3
Stephen Whitehouse
swhite8893 at aol.com
Sun Jul 8 16:36:46 PDT 2018
Rich,
You aren't clear on if the son's interest is a present interest? It seems like it is. He could just do a quit claim deed. If it is not a present interest, you would need to insert and after acquired title clause. As to either that or a disclaimer, you might check the tax consequences. He could quit claim a certain percentage each year to avoid that.
Steve
Stephen Whitehouse
Whitehouse & Nichols, LLP
P.O. Box 1273
601 W. Railroad Ave.
Shelton, Wa. 98584
360-426-5885
swhite8893 at aol.com
-----Original Message-----
From: wsbarp-request <wsbarp-request at lists.wsbarppt.com>
To: wsbarp <wsbarp at lists.wsbarppt.com>
Sent: Sat, Jul 7, 2018 12:00 pm
Subject: WSBARP Digest, Vol 46, Issue 3
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Today's Topics:
1. Effect of Disclaimer (J Richard McEntee, Jr.)
2. Re: Effect of Disclaimer (Rod Harmon)
3. Re: Effect of Disclaimer (HOWARD HERMAN)
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Message: 1
Date: Fri, 6 Jul 2018 14:49:41 -0700
From: "J Richard McEntee, Jr." <jrmcentee at gmail.com>
To: "wsbarp at lists.wsbarppt.com" <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Effect of Disclaimer
Message-ID: <A00BAD79-1182-4FC7-B345-5186554AF75E at gmail.com>
Content-Type: text/plain; charset="utf-8"
Hello list mates ?
I have a client who would like to disclaim an interest in real estate that he is to receive under his father?s will. His mother is alive and still owns a community interest in the real property. The client would like to disclaim such that his mother receives the deceased father?s community share of the property. The mother is entitled to the residuary estate.
In the particular situation, I am not certain that with a disclaimer the property will become part of the residuary estate. If the the effect of the disclaimer is that the disclaimant is treated as predeceasing the testator, will the property pass to the heirs of the disclaimant as opposed to the residuary estate? The dispositive language of the will reads as follows:
Bequest of Condominium. My entire interest, if any, in the condominium located at abc street any town USA (the ?Condominium") subject to any encumbrances thereon, all appliances, furniture, fixtures, ? located therein not otherwise disposed of by this instrument, and interest in insurance policies covering any of the foregoing, shall be distributed outright to my son, John Doe.
Without a survivorship clause, will the disclaimant's heirs take the condo under this scenario? If so, is there a solution that gets the property to Mom? If not, the client will be fine co-owing with Mom. However, he believes that mom should own the entire property and then if she chooses to give to him later then that will be satisfactory.
Please let me know your thoughts.
Thank you
Rich
RICH McENTEE
McENTEE LAW OFFICE
3800 Bridgeport Way W, Ste A411
University Place, WA 98466
253.227.9894(m)
jrmcentee at gmail.com
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Message: 2
Date: Sat, 7 Jul 2018 03:01:45 +0000
From: Rod Harmon <rodharmon at msn.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Effect of Disclaimer
Message-ID:
<MWHPR19MB13255FEBC17C38850AC6EF20AB460 at MWHPR19MB1325.namprd19.prod.outlook.com>
Content-Type: text/plain; charset="utf-8"
RCW 11.86.041 Disposition of disclaimed interest.
(1) Unless the instrument creating an interest directs to the contrary, the interest disclaimed shall pass as if the beneficiary had died immediately prior to the date of the transfer of the interest. The disclaimer shall relate back to this date for all purposes.
(2) Unless the beneficiary provides otherwise in the disclaimer, in addition to the interests disclaimed, the beneficiary shall also be deemed to have disclaimed the minimum of all interests in the disclaimed property necessary to make the disclaimer a qualified disclaimer for purposes of section 2518 of the Internal Revenue Code.
(3) Any future interest taking effect in possession or enjoyment after termination of the interest disclaimed takes effect as if the beneficiary had died prior to the date of the beneficiary's final ascertainment as a beneficiary and the indefeasible vesting of the interest.
(4) The disclaimer is binding upon the beneficiary and all persons claiming through or under the beneficiary.
(5) Unless the instrument creating the interest directs to the contrary, a beneficiary whose interest in a devise or bequest under a will has been disclaimed shall be deemed to have died for purposes of RCW 11.12.110.
(6) In the case of a disclaimer of property over which the disclaimant has any power to direct the beneficial enjoyment of the disclaimed property, the disclaimant shall also be deemed to have disclaimed any power to direct the beneficial enjoyment of the disclaimed property, unless the power is limited by an ascertainable standard relating to the health, education, support, or maintenance of any person as described in section 2041 or 2514 of the Internal Revenue Code and applicable regulations adopted under those sections. This subsection applies unless the disclaimer specifically provides otherwise. This subsection shall not be deemed to otherwise prevent such a disclaimant from acting as trustee or personal representative over disclaimed property.
Rod Harmon
RODNEY T. HARMON
Attorney at Law
P.O. Box 1066
Bothell, WA 98041
Tel: (425) 402-7800
Fax: (425) 458-9096
www.rodharmon.com<http://www.rodharmon.com>
rodharmon at msn.com<mailto:rodharmon at msn.com>
From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of J Richard McEntee, Jr.
Sent: Friday, July 6, 2018 2:50 PM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] Effect of Disclaimer
Hello list mates ?
I have a client who would like to disclaim an interest in real estate that he is to receive under his father?s will. His mother is alive and still owns a community interest in the real property. The client would like to disclaim such that his mother receives the deceased father?s community share of the property. The mother is entitled to the residuary estate.
In the particular situation, I am not certain that with a disclaimer the property will become part of the residuary estate. If the the effect of the disclaimer is that the disclaimant is treated as predeceasing the testator, will the property pass to the heirs of the disclaimant as opposed to the residuary estate? The dispositive language of the will reads as follows:
Bequest of Condominium. My entire interest, if any, in the condominium located at abc street any town USA (the ?Condominium") subject to any encumbrances thereon, all appliances, furniture, fixtures, ? located therein not otherwise disposed of by this instrument, and interest in insurance policies covering any of the foregoing, shall be distributed outright to my son, John Doe.
Without a survivorship clause, will the disclaimant's heirs take the condo under this scenario? If so, is there a solution that gets the property to Mom? If not, the client will be fine co-owing with Mom. However, he believes that mom should own the entire property and then if she chooses to give to him later then that will be satisfactory.
Please let me know your thoughts.
Thank you
Rich
RICH McENTEE
McENTEE LAW OFFICE
3800 Bridgeport Way W, Ste A411
University Place, WA 98466
253.227.9894(m)
jrmcentee at gmail.com<mailto:jrmcentee at gmail.com>
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Message: 3
Date: Sat, 7 Jul 2018 11:53:46 -0700
From: "HOWARD HERMAN" <hhherman2 at comcast.net>
To: "'WSBA Real Property Listserv'" <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Effect of Disclaimer
Message-ID: <001f01d41623$d6b0e290$8412a7b0$@comcast.net>
Content-Type: text/plain; charset="utf-8"
Rich,
Since all of the estate planners appear to be on vacation this week, I will suggest what I would do. I would accept the gift from your father which would make you a tenant in common with your mother with a stepped up basis in your half of the property. Your mother already has a stepped up basis in her half. Then you could gift deed your half with the stepped up basis to mom and she would own the whole of the property with a stepped up basis. You can do this at a cost of two recording fees and no excise tax.
Howard Herman
Herman Herman & Jolley, P. S.
509 220 5810
From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Rod Harmon
Sent: Friday, July 6, 2018 8:02 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Effect of Disclaimer
RCW 11.86.041 Disposition of disclaimed interest.
(1) Unless the instrument creating an interest directs to the contrary, the interest disclaimed shall pass as if the beneficiary had died immediately prior to the date of the transfer of the interest. The disclaimer shall relate back to this date for all purposes.
(2) Unless the beneficiary provides otherwise in the disclaimer, in addition to the interests disclaimed, the beneficiary shall also be deemed to have disclaimed the minimum of all interests in the disclaimed property necessary to make the disclaimer a qualified disclaimer for purposes of section 2518 of the Internal Revenue Code.
(3) Any future interest taking effect in possession or enjoyment after termination of the interest disclaimed takes effect as if the beneficiary had died prior to the date of the beneficiary's final ascertainment as a beneficiary and the indefeasible vesting of the interest.
(4) The disclaimer is binding upon the beneficiary and all persons claiming through or under the beneficiary.
(5) Unless the instrument creating the interest directs to the contrary, a beneficiary whose interest in a devise or bequest under a will has been disclaimed shall be deemed to have died for purposes of RCW 11.12.110.
(6) In the case of a disclaimer of property over which the disclaimant has any power to direct the beneficial enjoyment of the disclaimed property, the disclaimant shall also be deemed to have disclaimed any power to direct the beneficial enjoyment of the disclaimed property, unless the power is limited by an ascertainable standard relating to the health, education, support, or maintenance of any person as described in section 2041 or 2514 of the Internal Revenue Code and applicable regulations adopted under those sections. This subsection applies unless the disclaimer specifically provides otherwise. This subsection shall not be deemed to otherwise prevent such a disclaimant from acting as trustee or personal representative over disclaimed property.
Rod Harmon
RODNEY T. HARMON
Attorney at Law
P.O. Box 1066
Bothell, WA 98041
Tel: (425) 402-7800
Fax: (425) 458-9096
<http://www.rodharmon.com> www.rodharmon.com
<mailto:rodharmon at msn.com> rodharmon at msn.com
From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of J Richard McEntee, Jr.
Sent: Friday, July 6, 2018 2:50 PM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] Effect of Disclaimer
Hello list mates ?
I have a client who would like to disclaim an interest in real estate that he is to receive under his father?s will. His mother is alive and still owns a community interest in the real property. The client would like to disclaim such that his mother receives the deceased father?s community share of the property. The mother is entitled to the residuary estate.
In the particular situation, I am not certain that with a disclaimer the property will become part of the residuary estate. If the the effect of the disclaimer is that the disclaimant is treated as predeceasing the testator, will the property pass to the heirs of the disclaimant as opposed to the residuary estate? The dispositive language of the will reads as follows:
Bequest of Condominium. My entire interest, if any, in the condominium located at abc street any town USA (the ?Condominium") subject to any encumbrances thereon, all appliances, furniture, fixtures, ? located therein not otherwise disposed of by this instrument, and interest in insurance policies covering any of the foregoing, shall be distributed outright to my son, John Doe.
Without a survivorship clause, will the disclaimant's heirs take the condo under this scenario? If so, is there a solution that gets the property to Mom? If not, the client will be fine co-owing with Mom. However, he believes that mom should own the entire property and then if she chooses to give to him later then that will be satisfactory.
Please let me know your thoughts.
Thank you
Rich
RICH McENTEE
McENTEE LAW OFFICE
3800 Bridgeport Way W, Ste A411
University Place, WA 98466
253.227.9894(m)
jrmcentee at gmail.com
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