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CHAPTER 3 9:45 – 10:15Am Planning Considerations for Nonprobate CHAPTER 3 9:45 – 10:15am Planning Considerations for Nonprobate Assets Jenna B. Ichikawa Stokes Lawrence, P.S. PowerPoint distributed at the program and also available for download in electronic format: 1. Planning Considerations for Nonprobate Assets Electronic format only: 1. Planning Considerations for Nonprobate Assets Electronic versions of these documents are available on the KCBA website: https://www.kcba.org/cle/EventDetails.aspx?Event=51013 5/8/2013 PLANNING CONSIDERATIONS FOR NONPROBATE ASSETS Jenna Ichikawa Stokes Lawrence P.S. 1420 Fifth Avenue, Suite 3000 Seattle, Washington 98101-2393 (206) 626-6000 [email protected] May 10, 2013 © 2013 • Probate: Legal process to determine decedent’s ownership interests & testamentary plan. • Probate Asset: Asset that decedent owned that passes u nder his or her Will. • Nonprobate Asset: Assets decedent owned S. P. that pass “under written instrument or S. P. arrangement other than the person’s Will.” RCW AW RENCE, L 11.02.005(10). AW RENCE, L STO KES STO KES 3 2006 2006 2 © 201 © • Examples of Nonprobate Assets – Revocable Living Trust – Joint Tenancy with Right of Survivorship (i.e. bank account or real property) – Government Bonds – Community Property Agreements S. P. S. P. – Deed if possession postponed until death AW RENCE, L – Note or Contract affected by death AW RENCE, L STO KES STO KES 3 2006 2006 3 © 201 © 1 5/8/2013 • Examples of Nonprobate Assets – Beneficiary Designations: • Payable on Death (POD) Bank Account • Trans fer on Dea th (TOD) Secur ity Accoun t • Individual Retirement Account S. • Life Insurance Contract P. S. P. • Employee Benefit Plan AW RENCE, L AW RENCE, L STO KES STO KES 3 2006 2006 4 © 201 © • Revocable Living Trusts – Trust for which decedent is grantor and trust becomes effective/irrevocable only at death – May operate like a Will – Caution: Assets must be titled in name of RLT – Tax treatment of RLT S. P. S. P. AW RENCE, L AW RENCE, L STO KES STO KES 3 2006 2006 5 © 201 © • Joint Tenancy w/ Right of Survivorship – Ownership passes as matter of law at death – Banks may establish Joint Tenancy with and without rights of survivorship – Statutory presumption that surviving depositors own remaining funds at death S. P. S. P. – Presumption is rebuttable, In re Estate of AW RENCE, Kirpes, 155 Wash.App. 598 (Div. 3 2010) L AW RENCE, L STO KES STO KES 3 2006 2006 6 © 201 © 2 5/8/2013 • Government Bonds – Treasury bonds with “or” designation will pass to survivor – Caution: months long delay to transfer title when in certificate form S. P. S. P. AW RENCE, L AW RENCE, L STO KES STO KES 3 2006 2006 7 © 201 © • Beneficiary Designation − Payable On Death Accounts − Transfer on Death Security Accounts − Individual Retirement Accounts − Life Insurance Contracts − Employee Benefit Plans S. P. S. P. − Exception: Testamentary Disposition of AW RENCE, L Nonprobate Assets AW RENCE, L STO KES STO KES 3 2006 2006 8 © 201 © • Community Property Agreements – Typically 3-pronged: • All current property • All future acquisitions • Disposition upon death – CPA prevails over prior and later executed S. P. Wills, See Estate of Lyman & Estate of Brown S. P. – Wills prevail if mutual w/ Will Agreement – see AW RENCE, L AW RENCE, L Higgins v. Stafford STO KES STO KES 3 2006 2006 9 © 201 © 3 5/8/2013 • Transferring Nonprobate Assets – Contact institution to determine procedure – Provide Death Certificate – Life Insurance – request Form 712 (needed for filing Estate & Gift Taxes) S. – Take care when transferring retirement assets P. S. P. AW RENCE, L AW RENCE, L STO KES STO KES 3 2006 2006 10 © 201 © • Liability of Beneficiaries – PR: no duty to administer nonprobate assets – PR has authority to determine value & make a claim for contribution as needed – RCW 11.18.200: “A beneficiary of a nonprobate asset that was subject to satisfaction of the S. P. decedent’s general liabilities immediately before the S. P. decedent’s death takes the asset subject to liabilities, AW RENCE, claims, estate taxes, and the fair share of expenses of L AW RENCE, L administration . .” STO KES STO KES 3 2006 2006 11 © 201 © • Testamentary Disposition of Nonprobate Assets (RCW 11.11) – Will may override SOME beneficiary designations if SPECIFICALLY referenced – Designation must exist PRIOR to Will – Does NOT include: S. P. S. P. • Real Property passing under JTWROS • Deed or conveyance possession upon death AW RENCE, L AW RENCE, L • Community Property Agreement STO KES STO KES • IRA or Bond 3 2006 2006 12 © 201 © 4 5/8/2013 • Testamentary Disposition of Nonprobate Assets – DOES include: • Joint Bank Accounts With Right of Survivorship • Payable on Death or Trust Bank Accounts • Transfer on Death Securities or Security Accounts S. P. • Revocable Trusts S. P. • Notes or Contracts affected by death AW RENCE, L AW RENCE, L – Carefully review assets under RCW 11.11 STO KES STO KES – Estate of Burkes v. Kidd 3 2006 2006 13 © 201 © • Manary v. Anderson, 176 Wn.2d 342 – January 2013 WA Supreme Court case – Testator’s specific bequest of real estate effective even though title was held in RLT – Testator satisfied requirements of Act • Nonprobate asset qualified S. P. S. • Trust Beneficiary Designation existed prior to Will P. • Testator specifically referenced asset in Will AW RENCE, L AW RENCE, L • Testamentary disposition prevails STO KES STO KES 3 2006 2006 14 © 201 © • Final Considerations – Remind clients of impact of JTWROS ownership & beneficiary designations – Coordinate transfer of nonprobate assets with overall estate plan – Cautionary Example: Parents with Minor S. P. S. Children P. AW RENCE, L AW RENCE, L STO KES STO KES 3 2006 2006 15 © 201 © 5 PLANNING CONSIDERATIONS FOR NONPROBATE ASSETS May 10, 2013 By Jenna B. Ichikawa Stokes Lawrence, P.S. 1420 Fifth Avenue, Suite 3000 Seattle, WA 98101 (206) 626-6000 [email protected] JENNA B. ICHIKAWA joined the Trusts and Estate Planning group at Stokes Lawrence, P.S. in 2012 after graduating from the University of Washington School of Law. Ms. Ichikawa received her B.A. in History from the University of Puget Sound and her M.P.A. in Public Policy from the Evans School of Public Affairs at the University of Washington. Ms. Ichikawa’s practice focuses on assisting individuals and families with all aspects of the estate planning process, from basic planning to complex planning for taxable estates. She also concentrates her practice in the area of trust and estate administration, gift and estate taxation, charitable planned giving, and the law of tax-exempt organizations. The author would like to thank RoseMary Reed who prepared materials in 2012 that were incorporated into these materials. 1 PLANNING CONSIDERATIONS FOR NONPROBATE ASSETS 1. PROBATE VS. NONPROBATE PROPERTY a. Probate. Probate is a court-supervised procedure by which the ownership of property of a deceased person (the decedent) is determined. Probate takes place in Superior Courts of each county across Washington State. The purpose of probate proceedings is to permit the decedent’s Personal Representative to take possession, protect and preserve the decedent’s property; pay all debts, claims and taxes necessary to settle the decedent’s affairs; and to distribute the decedent’s property to the rightfully entitled recipients. b. Probate Property. The general definition of a “probate” asset is an asset in which the decedent had an ownership interest that passes under the terms of the decedent’s last Will and testament at death. c. Nonprobate Property. The general definition of a “nonprobate” asset is all other assets in which the decedent had an ownership interest. Nonprobate assets pass according to their own terms and are not subject to the dispositive provisions of a Will. The statutory definition of a nonprobate asset is similar to the general definition, but an important distinction is that it specifically excludes the payable on death provisions of a life insurance policy, annuity, or other similar contract, or of an employee benefit plan from the definition of “nonprobate” assets (see statute below). The exclusion of these assets in the statutory definition is an important distinction to keep in mind when applying Chapter 11 of the Revised Code of Washington to probate and nonprobate assets. "Nonprobate asset" means those rights and interests of a person having beneficial ownership of an asset that pass on the person's death under a written instrument or arrangement other than the person's will. 2 "Nonprobate asset" includes, but is not limited to, a right or interest passing under a joint tenancy with right of survivorship, joint bank account with right of survivorship, payable on death or trust bank account, transfer on death security or security account, deed or conveyance if possession has been postponed until the death of the person, trust of which the person is grantor and that becomes effective or irrevocable only upon the person's death, community property agreement, individual retirement account or bond, or note or other contract the payment or performance of which is affected by the death of the person. "Nonprobate asset" does not include: A payable-on-death provision of a life insurance policy, annuity, or other similar contract, or of an employee benefit plan. .” RCW 11.02.005(10). d. Examples of Nonprobate Assets. Some common nonprobate assets are: i. Revocable Living Trusts. A Revocable Living Trust (RLT) is a trust that is established during the decedent’s lifetime, usually naming the decedent as the trustee while alive and competent, and naming a successor trustee to carry out the terms of the trust upon death or incompetence. It can contain the same dispositive provisions as a Will, including the distribution of assets and the establishment of new trusts after the decedent’s death.
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