Estate Planning, Probate, & Trust Administration In WA (WSBA)

Question 1

In Washington, when there is a married couple seeking joint representation from an attorney, who is the attorney generally considered to be representing? What are the implications?

Answer 1

In Washington, a joint representation generally will mean that the lawyer represents the community, so there is no privilege between the co-clients and information will be shared by the lawyer with both spouses.

Question 2

What can a lawyer do if a conflict of interest arises between joint clients during the course of their planning or if they have a difference of opinion?

Answer 2

The lawyer will be able to point out the pros and cons of the spouse’s respective positions or differing opinions (however, under the RPCs the lawyer cannot be an advocate for one spouse against the other). If the spouses continue to ask the lawyer to serve the spouses jointly, then the lawyer’s effort will be to assist in developing a coordinated overall plan and to encourage the resolution of differing interests in an equitable manner.

Question 3

What should a lawyer do if actual conflicts of interest arise between jointly represented spouses such that, in the lawyer’s judgment, it is impossible for the lawyer to perform his ethical obligations to both spouses?

Answer 3

The lawyer will need to withdraw as the joint lawyer.

Question 4

What are some examples of things to do to help clients open up during a joint-representation consultation?

Answer 4

(1) Provide a detailed questionnaire ahead of time and (2) take the time to walk through the joint representation language in the engagement letter.

Question 4

What are some common issues to look out for when there’s a second-marriage situation in a joint representation?

Answer 4

(1) unresolved emotional issues that negatively impact current estate planning decision-making, (2) blended families, (3) support obligations, (4) impact of prenuptial agreements on estate planning, (5) substantial age differences, (6) wealth disparities, and (7) estate tax apportionment issues. (CH. 2 PG. 6)

Question 4

What steps should be taken when a lawyer is representing one spouse (and not the other) and the represented spouse wants to bring the unrepresented spouse to all the client meetings?

Answer 4

The attorney should counsel the client regarding the implications of otherwise sharing confidential information in the presence of the unrepresented spouse and should obtain the represented spouse’s informed consent before proceeding. (CH. 2 PG. 6)

Question 5

In Washington, to whom does a lawyer owe duties when he/she is retained by a PR or trustee?

Answer 5

In Washington, if a lawyer is retained by the PR or trustee to advise the client on the administration of a probate estate or trust, then the lawyer’s duties flow to the client and not the fiduciary estate or trust or its beneficiaries and legatees. (CH. 2 PG 9).

Question 6

What are intestacy statutes meant to reflect/model?

Answer 6

Intestacy statutes are meant to reflect the presumed wishes of the citizens of the state regarding disposition of their property if they had made wills.(CH. 3 PG. 3)

Question 7

What result if the beneficiary(ies) names in the will predecease the decendet?

Answer 7

The person would die intestate even if he or she has a will. (CH. 3 PG. 3)

Question 8

If a will precedes the marriage / registered domestic partnership and the spouse / domestic partner is omitted from the will, what result?

Answer 8

The spouse / registered domestic partner is considered omitted from the decedent’s will. However, the omitted spouse / domestic partner is entitled to claim an intestate share pursuant to RCW 11.12.095(3). (CH. 3 PG. 3)

Question 9

If a will precedes the birth/adoption of a child and the child is omitted from the will, what result?

Answer 9

The child is considered to have been inadvertently omitted and is entitled to a share pursuant to RCW 11.12.091 (CH. 3 PG. 3)

Question 10

What is the difference between a “presumptive heir” and an “heir apparent?”

Answer 10

A presumptive heir is a family relation who might become an heir unless displaced by a closer relation (the initial/primary generation/class might get a new member) and an heir apparent (or “prospective heir”) is a person who would inherit upon the death of the ancestor and who, if surviving, would not be displaced. (CH. 3 PG. 3)

Question 11

How much of the decedent’s share of community property goes to the surviving spouse or RDP at death? How much to issue or other potential heirs?

Answer 11

All of the decedent’s community estate goes to the spouse or RDP. None goes to issue or other potential heirs in this scenario.

Question 12

How much of the decedent’s separate property goes to the surviving spouse or RDP at death? How much to issue or other potential heirs?

Answer 12

If decedent has surviving issue, then half goes to the surviving spouse. The remainder will go to the decedent’s issue equally, or if they’re of unequal degree, then those of more remote degree will take by representation.
If there’s no issue but there are decedent’s parents or issue of his/her parents, then three-quarters of the net separate estate goes to the spouse, and the remainder goes to the surviving parent(s), and then to the issue of the parents equally if they are not surviving.
(CH. 3 PG. 5 & RCW 11.04.015)

Question 13

What is done with a decedent’s separate property if there is no one besides the surviving spouse / RDP? (No one else as specified in RCW 11.04.015)

Answer 13

All the separate property will go to the surviving spouse / RDP. (CH. 3 PG. 5 & RCW 11.04.015)

Question 14

What does “Representation” mean in the RCW?

Answer 14

“Representation” refers to a method of determining distribution in which the takers are in unequal degrees of kinship with respect to a decedent, and is accomplished as follows: After first determining who, of those entitled to share in the estate, are in the nearest degree of kinship, the estate is divided into equal shares, the number of shares being the sum of the number of persons who survive the decedent who are in the nearest degree of kinship and the number of persons in the same degree of kinship who died before the decedent but who left issue surviving the decedent; each share of a deceased person in the nearest degree must be divided among those of the deceased person’s issue who survive the decedent and have no ancestor then living who is in the line of relationship between them and the decedent, those more remote in degree taking together the share which their ancestor would have taken had he or she survived the decedent. (RCW 11.02.005(17))

Question 15

For purposes of intestate succession or construction of wills, can an adopted child inherit from his/her natural parents? What about the other way around?

Answer 15

In Washington, the answer to both is no. (RCW 11.04.085) (RCW 26.33.260; In re Estate of Fleming, 21 P.3d 281 (2001)).

Question 16

When may a decedent be deemed to have made an advancement?

Answer 16

If a person dies intestate, the property that the person gave during their lifetime is not considered an advancement unless the inter vivos transfer was shown to be an advancement. Whether the transfer is an advancement or an absolute gift depends on the decedent’s intent. (RCW 11.04.041; In re Spandoni’s Estate)

Question 17

Define codicil. Does it need to refer to or be attached to an earlier will to be valid?

Answer 17

A codicil is a will that modifies or partially revokes an existing earlier will. Codicils do not need to refer to or be attached to an earlier will to be valid. (RCW 11.12.005(2).

Question 18

What is the effect of a valid codicil?

Answer 18

The effect of a valid codicil is to republish the will and, unless intended otherwise by the testator, to bring it up to the date of the codicil for any purpose for which the date of the document is important.

Question 19

Regarding choice of law, when is a will validly executed in WA?

Answer 19

A will is legally executed if executed in the manner prescribed either by WA law OR the law of the place where the will is executed or where the testator is domiciled, either at the time of the will’s execution or at the time of the testator’s death. (RCW 11.12.020)

Question 20

Does WA recognize holographic wills?

Answer 20

As WA statutes make no provision for holographic wills, such wills executed in the state are not recognized. However, a holographic will executed in another state and validly executed under the law of that state will be recognized.

Question 21

What is the difference between a reciprocal will and a mutual will in WA?

Answer 21

A reciprocal will is not necessarily executed pursuant to an agreement, so it is revocable without consent after the death of the other spouse. Mutual wills show the distinct understanding between the parties that one will was executed upon the faith and the provisions of the other (both evidencing the same intent as to take care of, and provision for, the children), so the survivor is not permitted to change his or her will.

Question 22

What are the statutory formalities required for a valid will in WA?

Answer 22

A valid will must be (1) in writing, (2) signed by the testator . . ., and (3) attested by two or more competent witnesses who subscribe their names to the will . . . . (RCW 11.12.020).

Question 23

What is the witness presence requirement for a valid will in WA?

Answer 23

The requirement for signing by the testator does not require signing in the presence of the witnesses.

Question 24

Who is a competent witness for purposes of will attestation? Can a beneficiary of the document be competent witness.

Answer 24

Competent witnesses are persons who, at the time of attestation, could legally testify in court to the facts which they attested and who are not legally disqualified by reason of mental incapacity, personal interest, or conviction of a crime. Beneficiaries of a will are interested persons. A beneficiary may be competent and qualified to testify as a witness concerning execution, but his or her interest results in a rebuttable presumption that the witness procured the gift by duress, menace, fraud, or undue influence.

Question 25

If a child is born after the execution of a will and is thus omitted, what result?

Answer 25

A child who is born or adopted by the decedent after the execution of a will, but who is not named or provided for in the will, is an "omitted child" and is entitled to receive a portion of the decedent's estate unless it appears from the will that the omission was intentional. The omitted child must receive an amount equal to the amount they would have received under RCW 11.04.015. (RCW 11.12.091)

Question 26

What are the elements of testamentary capacity? What presumptions come when the will meets the Wills Act?

Answer 26

The requirements of testamentary capacity (sound mind) are that the testator have (1) sufficient mind and memory to understand the nature of the business in which engaged (understand that they're making a testamentary gift), (2) ability to comprehend generally the nature and extent of property that constitutes the testator's estate (know what their assets are), and (3) ability to recollect the objects of the testator's bounty (who would inherit in intestacy). Testamentary capacity is presumed when a will is executed in legal form.

Question 27

When does Undue Influence exist?

Answer 27

Undue Influence exists if the testator has been pressured so that the will is not a product of the testator's free will and it substitutes the will of the person exercising the influence (testator's will is overborn by another).

Question 28

What are the indicia of Undue Influence in WA?

Answer 28

The most important facts raising suspicion are (1) that the beneficiary occupied a fiduciary or confidential relation to the testator; (2) that the beneficiary actively participated in the preparation or procurement of the will; and (3) that the beneficiary received an unusually or unnaturally large part of the estate. Other considerations are the age or condition of health and mental vigor of the testator, the nature or degree of relationship between the testator and the beneficiary, the opportunity for exerting an undue influence, and the naturalness or unnaturalness of the will.

Question 29

When a community property agreement and Will are inconsistent, which will generally prevail?

Answer 29

A community property agreement generally prevails over an inconsistent will.

Question 30

Describe the situation in Norris v. Norris (community property agreement vs. Will) and the court's ruling.

Answer 30

In Norris v. Norris, 95 Wn.2d 124, 133, 622 P.2d 816 (1980), the WA Supreme Court held that if (1) a surviving spouse entitled to property under a community property agreement (2) nevertheless probates the deceased spouse's will and (3) acts as personal representative, --> the surviving spouse must be deemed to have waived rights under the community property agreement, and the will controls. *NOTE: Deskbook has "may" in its conclusion, but the case says "must", so I changed that. - CH. 3; PG 50

Question 31

When a community property agreement and a beneficiary designation in an ERISA pension plan or retirement account are inconsistent, which will generally prevail?

Answer 31

The most recent authority holds that ERISA preempts, such that the ERISA pension and retirement plans will determine the beneficiary of the plan.

Question 32

What accounts are governed by ERISA?

Answer 32

Pension plans, retirement accounts, and individual retirement accounts are governed by the Employee Retirement Income Security Act (ERISA) and other federal laws. See I.R.C. §§401-409A. - Most Employer-Sponsored retirement plans, such as 401Ks (IRAs are NOT covered by ERISA (that is correct--it's not an employer-sponsored plan)). [[[CH 3; PG 59]]] [[[Decedent's Estates Notes - Nonprobate Transfers]]]

Question 33

May parents appoint a guardian for their minor chil(ren) in a community property agreement?

Answer 33

No. - CH 3; PG 50.

Question 34

How may a community property agreement be amended or rescinded?

Answer 34

A community property agreement cannot be amended or rescinded except by valid CONTRACT, which requires BOTH spouses' mutual consent. However, the parties to a community property agreement may abandon it "by MUTUALLY MANIFESTED INTENTION clearly shown." - CH 3; PG 51

Question 35

What significance does a finding of a Committed Intimate Relationship have for purposes of division of property?

Answer 35

Washing law requires equitable distribution of property that would have been community property had the partners been married. This distribution for committed intimate relationships applies only to property that would have been community property and not to property that is separate property. - CH 3; PG 53

Question 36

What is the purpose of the Committed Intimate Relationship doctrine in WA?

Answer 36

The purpose of the committed intimate relationship doctrine is to protect unmarried parties who acquire property during their relationships by PREVENTING THE UNJUST ENRICHMENT of one at the expense of the other when the relationship ends. - CH 3; PG 53

Question 37

What test will a court use in determining whether a Committed Intimate Relationship exists?

Answer 37

Factors that a court may examine include (1) the LENGTH of the RELATIONSHIP, (2) the TIME that parties have COHABITED, (3) the NATURE of the RELATIONSHIP, (4) the extent to which property has been COMMINGLED, (5) and the INTENT of the parties in question. These factors are not applied in a "hyper technical fashion" but are based on the particular circumstances of each case. - CH 3; PG 53

Question 38

What presumption is created when it is shown that two parties have a Committed Intimate Relationship?

Answer 38

If property is acquired when a party is involved in a committed intimate relationship, the party to such a relationship "enjoys the benefit of a burden of persuasion-shifting presumption that all income and property acquired during the relationship are jointly owned" and does not lose the benefit of the presumption through the death of the other partner. - CH 3; PG 53

Question 39

How is a Joint Tenancy with Right of Survivorship created?

Answer 39

A joint tenancy may be created only by a written instrument that expressly declares the joint tenancy. Spouses can hold property as joint tenants only if their intent is shown by clear, certain, and convincing evidence in a writing that both sign. - The written instrument can be in the form of a single agreement, transfer, deed, will, or other instrument of conveyance, or by agreement, transfer, deed, or other instrument from a sole owner, tenants in common, or joint tenants to themselves and others. - reference to spouses as "joint tenants" alone may be insufficient to establish joint tenancy with right of survivorship - CH 3; PG 57

Question 40

What is required for a Joint Tenant to sever a Joint Tenancy with Right of Survivorship?

Answer 40

A joint tenant has the unilateral right to sever the joint tenancy at any time. - CH 3; PG 58

Question 41

May a surviving Joint Tenant disclaim their interest upon the death of another Joint Tenant?

Answer 41

Yes. Because a joint tenant has the unilateral right to sever the joint tenancy at any time, a surviving joint tenant may disclaim a joint tenancy interest. For purposes of a disclaimer, property held as a joint tenancy transfers upon the death of a joint tenant, not at the creation of the joint tenancy. - CH 3; PG 58

Question 42

When a Joint Tenancy with Right of Survivorship designation and Will are inconsistent, which will prevail?

Answer 42

The JTWROS Designation.

Question 43

When a Joint Tenancy with Right of Survivorship designation and Community Property Agreement are inconsistent, which will prevail?

Answer 43

The CPA.

Question 44

Under the Financial Institution Individual Account Deposit Act, how are joint accounts owned during the owners' lifetime?

Answer 44

During the parties' lifetime, the funds are owned in proportion to the net funds owned by each depositor. - RP: There is a rebuttable presumption that such joint accounts with right of survivorship do NOT give the non-depositing party any present interest in the account funds. - NOTE: The contract of deposit may provide otherwise, or there must be clear and convincing evidence of a contrary intent at the time the account was created (to overcome the presumption). [[[CH 3; PG 58]]]

Question 45

Under the Financial Institution Individual Account Deposit Act, how are joint accounts owned at the death of one of the owners?

Answer 45

Funds belonging to a deceased depositor that remain on deposit in a joint account (in the account) with right of survivorship belong to the surviving depositor(s) unless there is clear and convincing evidence of a contrary intent at the time the account was created. - RP: The selection of joint with right of survivorship upon account opening creates only a rebuttable presumption of survivorship. - NOTE: Absent evidence that the deceased depositor intended a right of survivorship, the fact that a bank employee made the selection as a joint account does not give rise to a joint account (Taufen v. Estate of Kirpes). [[[CH 3; PG 58]]]

Question 46

What accounts are governed by the Financial Institution Individual Account Deposit Act (RCW Chapter 30A.22)?

Answer 46

Individual deposit accounts in ALL financial institutions (including for "joint accounts"). [[[CH 3; PG 58]]]

Question 47

What result when an account owned as JTWROS and the deceased joint owner has pledged the account to someone other than the surviving joint owner?

Answer 47

After the death of a joint account owner, the survivor is entitled to the entire account regardless of any pledge made by the deceased joint owner involving the accounts. [[[CH 3; PG 59]]]

Question 48

How are life insurance proceeds disbursed in the absence of a beneficiary designation?

Answer 48

In the absence of a beneficiary designation, the terms of the policy (the contract) govern the manner of payment of life insurance proceeds. [[[CH 3; PG 60]]]

Question 49

What are the uses for Life Insurance in estate planning (according to EPPTAW)?

Answer 49

Earnings replacement, creditor protection, funding estate tax, protecting closely held business, and providing additional inheritance (ex: not wanting kids to know about another bene or wanting to separate inheritances). [[[CH 3; PG 60-61]]]

Question 50

Who are the parties to a Life Insurance contract?

Answer 50

(1) The insured (person on whose life the insurance is based); (2) The owner (generally the person who signed the insurance contract); (3) The beneficiary (the party that receives the death benefit upon the death of the insured); and (4) The carrier (the insurer--the company who issues the policy). [[[CH 3; PG 62]]]

Question 51

Under Washington's "super will" statute, is "all nonprobate assets" sufficient to reference and transfer nonprobate assets as a category of assets? What about a residuary clause?

Answer 51

"All nonprobate assets" is sufficient. The residuary clause alone is insufficient. [[[CH 3; PG 66]]]