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John S. Palmer

John Palmer’s Answers

197 total


  • Establishing a US trust account for foreign inheritance

    My daughter was left money to be held in trust until she reaches majority by her grandmother in Australia. Our US bank is asking for a trust document in order to open the account here and says that her will is not sufficient but I cannot determin...

    John’s Answer

    You might be able to resolve this under Washington's Trust and Estate Dispute Resolution Act, which permits “any issue, question, or dispute involving…the determination of any question arising in the administration of an estate or trust” to be resolved by court order or agreement of all interested parties. It would depend in part on whether Washington can assert jurisdiction over the trust or not.

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  • Can I sue my father for refusing to sell my grandparents estate?

    My grandparents passed away in 2009, leaving my father as the executor of the estate. Since then, he has been refusing to sell the estate, preventing all beneficiaries from receiving what was left for them under my grandparents will. Am I able to ...

    John’s Answer

    Assuming this is a Washington estate, RCW 11.76.010 generally requires the executor to file annual status reports. Often they are not filed and no one objects, but in your case you might want to ask for one that includes an explanation as why the estate has not been wrapped up and assets distributed. How your father responds would probably dictate what you do next. There may be extenuating circumstances justifying his inaction, or not, but it would be wise to try to get a formal explanation from him before taking him to court.

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  • Can the Personal representative file for SMALL ESTATE AFFIDAVIT (RCW 11.62.010) after 40 days?

    I am the only surviving child and my father died intestate. The surviving Spouse has signed the consent of person entitled to letters administration and consent to grant of non-invervention powers and waiver of bond and notice re petition for let...

    John’s Answer

    • Selected as best answer

    I don't think you can use the small estate affidavit after a PR is appointed, because the statute says that the affidavit must state that "no application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction." In any event, I believe the statute requires the gross probate estate to be under $100,000, not the net estate after payment of debts. And debts should probably be handled by the PR anyway.

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  • Is there such a thing as an "air tight" prenup that cannot possibly be broken?

    is there such a thing as an "air tight" prenup that cannot possibly be broken?

    John’s Answer

    Under Washington law, the burden is on the party seeking to enforce the agreement to demonstrate that the agreement is either substantively or procedurally fair. It will be upheld as substantively fair if the court finds that the agreement “provides a fair and reasonable provision for the party not seeking enforcement of the agreement.”

    Even if the agreement is not substantively fair, it will be upheld as procedurally fair if the court finds that (1) there was full disclosure of the amount, character and value of the property involved, and (2) the agreement was entered into fully and voluntarily on independent advice and with full knowledge by both parties of their rights. Due to the complexity of the community property laws, the best way to pass the procedural fairness test is for each party to consult with the independent attorney of his or her choice before signing the agreement, and have sufficient time to review it with his or her lawyer before signing it.

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  • Can two sisters have power of atty over their mother?

    Last year my mom ended up in the hospital at that time my sister got power of attorney. Since then my sister has taken all my moms money out of her accounts and put the money into her account. She is using the money to pay my moms housing that is ...

    John’s Answer

    You should check whether your more recent POA explicitly revokes the prior POA given to your sister. In any event Washington law (RCW 11.94.090 and .100) gives you have the right to ask your sister to account for assets taken, and to seek a court order compelling her to return them, but this is not something you should attempt to do without a lawyer, as the laws re: gifting of a principal's assets by someone with POA are complicated. Generally speaking, you are correct that "gifting" assets to render your mother eligible for Medicaid will most likely backfire, as gifts made within 5 years of applying result in a period of ineligibility.

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  • Who has higher priority to an intestate estate? the adult child or non citizen spouse?

    If the spouse already was the beneficiary of the property, there is no will, it goes to probate, how would they distribute the property? would they automatically force a sale and split it or let her retitle it?

    John’s Answer

    RCW 11.04.015 states that a surviving spouse inherits all community property and half of the decedent's separate property, and the other half goes to surviving issue of the decedent. If the marriage was valid, the nationality of the surviving spouse is not relevant for inheritance purposes (but may be relevant for estate tax issues). If the spouse was specifically designated as the "beneficiary" of a certain asset, she may be entitled to it, but otherwise you would generally need to figure out what is community vs. separate property.

    www.palmerlegal.com

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  • Common law marriage and division of assets

    I know WA doesn't have a common law marriage but something else that gives people rights to property... I have been in a relationship going on 4 years. After 7 months of dating and living separately I bought a house and paid down payment etc, whic...

    John’s Answer

    From my blog post on the topic:

    Washington does not recognize common-law marriage. However, it has adopted the “committed intimate relationship” doctrine (formerly known as the “meretricious relationship” doctrine), which “is a judicially created doctrine used to resolve the property distribution issues that arise when unmarried people separate after living in a marital-like relationship and acquiring what would have been community property had they been married.”

    I have added a link to the blog article, which explains the 3-prong analysis courts use to divide property after a committed intimate relationship ends. You have a couple of potential factors in your favor: the fact that the house was purchased by you before you lived together, and the fact that there is case law to support the proposition that if the house was your separate property at the time it was acquired, and he merely helped pay the mortgage or other expenses while living there with you, then he has been compensated for his "investment" by getting to live in the house, and does not have an ownership interest.

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  • Do declarations in support of a trust legally need to be included with a notice of action subpoena and would a judge order this,

    I am trying to form a non medical special needs trust for my brother with a drug problem and non diagnosed mental issues. I had witnesses write declarations in support of this action and instructed my lawyer not to include them with trial date not...

    John’s Answer

    I agree that more information is needed to answer this question, but it sounds like you have petitioned to have funds to which your brother is legally entitled--perhaps an inheritance--diverted to a special needs trust to protect them and prevent him from squandering them. If so, then he is legally entitled to due process (generally defined as notice of what you are asking, and an opportunity to respond) before the court will act. If that's the case, then he is entitled to copies of all documents you are filing with the court, which would include the declarations filed in support of the action.

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  • Trust Representation

    I am Trustee who would like to represent the Trust in a foreclosure case Pro Se.Is it allowed under Washington law.

    John’s Answer

    It's pretty widely held that because entities like corporations and trusts cannot hold law licenses, officers or trustees can represent the entities on a pro se basis. The pro se exceptions are quite limited and generally apply only if the layperson is acting solely on his or her own behalf.

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  • I have only been married a year and now want a divorce

    I want the ring I gave my wife back. Do I have any hope of getting it back?

    John’s Answer

    Under Washington law, the ring may be your spouse's separate property, but in a divorce, all property, both community and separate, is subject to a "fair and equitable" division by the court. That means the separate property of one party can be awarded to the other. Therefore, you could ask to be awarded the ring, and the court might award it to you. I think you would have to demonstrate why it would be "just and equitable" to do so (e.g., you spent a good chunk of your savings on it, and now need to sell it to pay bills or expenses), and are not just acting out of spite.

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