[WSBARP] Disclaimers

Mon Jul 9 09:28:37 PDT 2018

Rich, 

Rights are assignable in general, the disclaimer statute says (or assumes) inheritance rights are assignable, and the only two cases I can find talk around the issue and also assume that they are:

 <https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1973124209&pubNum=0000661&originatingDoc=I1d41b862e07611da9b41e883a4c5f38e&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)> 
Higgenbotham v. Topel, 9 Wash. App. 254, 511 P.2d 1365 (Div. 3 1973) (devisee of real property was required to make payments under agreement made by executor of estate to the extent of value of inheritance);  <https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1914002520&pubNum=0000660&originatingDoc=I1d41b862e07611da9b41e883a4c5f38e&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)> Bimrose v. Matthews, 78 Wash. 32, 138 P. 319 (1914)(assignee of vendor's interest in contract was not personally liable for delivery of perfect title to vendee).

But, you have to figure out what this does within the language of the rest of the will, and then you have to think about consideration and the IRS and the like. If everyone is good with it, then fine. If not, then consideration becomes an issue. And finally, you have the ability to use the family settlement agreement and TEDRA together to reach an agreement around the assignment, if it is something everyone wants.  This is from a recent brief:

II.      BASIS FOR AGREEMENT

                    A.      Family Settlement Agreement Doctrine.  Washington law provides that family members may settle matters subject to probated estates by agreement:  

      Family Settlement Agreement Doctrine. Heirs may enter into an agreement that disposes of the estate in a plan different from that provided by a will. Collins v. Collins, 151 Wash. 201, 215, 275 P. 571 (1929). 

... Family settlements “should be accorded finality to the fullest extent possible, and should be encouraged and fostered as a matter of public policy.” Hadley v. Cowan, 60 Wash.App. 433, 438–39, 804 P.2d 1271 (1991).

In re Estate of Washburn, 168 Wash. App. 1043 (2012) (unpublished, cited as nonbinding authority, GR 14.1).

                    B.      TEDRA.      The Trust and Estate Dispute Resolution Act also provides a basis for this Family Settlement Agreement.  RCW 11.96A.210 says that RCW 11.96A.220-.250 are intended "to provide a binding nonjudical procedure to resolve matters through written agreements among the parties interested in [an] estate or trust. The procedure is supplemental to, and may not derogate from, any other proceedings or provision authorized by the common law."  This means that the TEDRA process is supplemental to the application of the Family Support Agreement doctrine in this matter. The Agreement must identify the subject matter and the parties, and be reduced to writing. Upon filing of the Agreement, or a Memorandum of the Agreement, with the Court, it becomes equivalent to a final court order that is binding on all persons interested in the Estate or trust. 

You would have to talk to a CPA about the assignment of rights for less than full value based on a family settlement agreement.

Rob

Robert D. Wilson-Hoss 
Hoss & Wilson-Hoss, LLP 
236 West Birch Street 
Shelton, WA 98584 
360 426-2999

www.hossandwilson-hoss.com
rob at hctc.com

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From: Rich McEntee [mailto:jrmcentee at gmail.com] 
Sent: Monday, July 09, 2018 8:40 AM
To: rob at hctc.com
Subject: Re: [WSBARP] Disclaimers

Hi Rob

Thank you for your note. Can you give me a brief explanation as to the reason for an assignment as opposed to a disclaimer? Or point me to some guidance? 

Best regards 

Rich 

Rich McEntee

McEntee Law Office

3800 Bridgeport Way W Ste A411

University Place, WA  98466

253.227.9894

 <mailto:jrmcentee at gmail.com> jrmcentee at gmail.com

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Sent from my iPhone

On Jul 9, 2018, at 8:19 AM, Rob Wilson-Hoss <rob at hctc.com> wrote:

We almost always do assignments instead of disclaimers; tax consequences need to be considered. The disclaimer statute includes, 

This chapter shall not abridge the right of any person, apart from this chapter, under any existing or future statute or rule of law, to disclaim any interest or to assign, convey, release, renounce or otherwise dispose of any interest.

11.86.080 

This covers Steve's quit claim deeds as well. 

Rob

Robert D. Wilson-Hoss 
Hoss & Wilson-Hoss, LLP 
236 West Birch Street 
Shelton, WA 98584 
360 426-2999

www.hossandwilson-hoss.com
rob at hctc.com

This message is intended solely for the use of the addressee and may contain information that is privileged, confidential, and exempt from disclosure under applicable law.  If you are not the addressee, you are hereby notified that any use, distribution, or copying of this message is strictly prohibited.  If you received this message in error, please notify us by reply e-mail or by telephone (call us collect at the number listed above) and immediately delete this message and any and all of its attachments.  Thank you.

This office does debt collection and this e-mail may be an attempt to collect a debt, Any information obtained will be used for that purpose.  To the extent the Federal Fair Debt Collection Practices Act (15 U.S.C. § 1692) applies this firm is acting as a debt collector for the condominium/homeowners' association named above to collect a debt owed to it. Any information obtained will be used for collection purposes. You have the right to seek advice of legal counsel.

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Stephen Whitehouse
Sent: Sunday, July 08, 2018 4:37 PM
To: wsbarp at lists.wsbarppt.com
Subject: Re: [WSBARP] WSBARP Digest, Vol 46, Issue 3

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

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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)

----------------------------------------------------------------------

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%3chttp:/www.rodharmon.com> <http://www.rodharmon.com>
rodharmon at msn.com<mailto:rodharmon at msn.com <mailto:rodharmon at msn.com?> >

From: wsbarp-bounces at lists.wsbarppt.com [mailto: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 <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 <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 <mailto:rodharmon at msn.com?> > rodharmon at msn.com

From: wsbarp-bounces at lists.wsbarppt.com [mailto: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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