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John J. Sullivan

John Sullivan’s Answers

578 total


  • Does the beneficiary named in my stock brokerage account supersede the % named in my "Residuary Estate?"

    John’s Answer

    I agree with Mr. Longyear that the best practice is to periodically review not only whether your estate planning documents remain consistent with your intent under current law, but also to review whether the way you hold title to various assets and accounts align with the intent expressed in your Will.

    For example, and hypothetically speaking, a brokerage account can be titled as "transferable on death" or "payable on death," thereby bypassing the provisions of your Will. Conversely, in WA some otherwise "non-probate" accounts can be controlled by a "super will" provision in your Will regardless of the beneficiary designation on the account.

    When you do your review, you should also consider the impact of the provision in your Will controlling how expenses and taxes are allocated. For example, do you want those to be paid at all from the investment accounts going to the one beneficiary? Or should they all be paid out of the residue?

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  • See below?

    John’s Answer

    I agree with Dalynne. TEDRA allows for Nonjudicial agreements to be entered into if all interested parties unanimously agree. This would include the Personal Representative and all affected beneficiaries, including, in some cases, contingent beneficiaries. Depending on the particular circumstances, it is sometimes better to present the matter as a proposed order to make the change pursuant to a judicial TEDRA - especially if it is a matter having potential tax implications where any adversarial conflicts might be important to evidence.

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  • What rights do I have as a beneficiary on an irrevocable trust out of NC?

    John’s Answer

    Mr. Longyear is correct that trust laws are state specific and neither he nor I are licensed in NC, presumably the state whose laws govern. My first question would be whether your father retains legal capacity and if so how the revocable trust became irrevocable. It would be highly unusual for a living competent person to do that. It would likely trigger a gift tax return obligation and would eliminate the anticipated step up in basis on capital assets at death. Perhaps this is a technique available in NC for Medicaid planning, but not one I'm familiar with here in WA.

    If your father lacks legal capacity, I would wonder how your sister could remove you as co-trustee unless you are somehow disqualified from serving. Here in WA irrevocable trusts can only be modified by court order or unanimous written agreement of all interested parties. I don't know the rules in NC.

    As for being entitled to reports and documentation, again I am not licensed in NC and do not know its rules. You should inquire of a competent local licensed attorney what your rights are. Here in WA once your father dies or the trust becomes irrevocable you would become entitled to information and have rights to accountings from the trustees.

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  • How long does 2 beneficiaries have to wait for the 3rd beneficiary to sign release of account funds?

    John’s Answer

    Maybe I'm missing something here about this particular kind of TOD account, or perhaps the financial institution has unusual rules. My understanding is that when multiple beneficiaries are named each can separately claim his or her designated percentage share of the account balance or assets. The only situation I can imagine where unanimous sign off would be reasonably required would be if the account holds securities that are not readily divisible by three and the third beneficiary's signoff is required to sell one or more of the securities. The other situation would be if this is not really TOD but JTWROS and it's going to continue as such with the three survivors. I'm curious why the third beneficiary doesn't want his or her inheritance. If the problem is one of difficulty equally dividing securities, perhaps the two of you could sign some sort of waiver with the financial institution authorizing it to hold the third beneficiary's share without selling any securities.

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  • I have been named as Successor Trustee in my Mom's Living Trust

    John’s Answer

    That choice is your mother's. I am not licensed in CA, so I don't know if the law is the same, but here in WA the authority to transfer assets into trust must be specified in a durable power of attorney. It is not implied by the statute. That's one of the reasons I make sure a client executes a power of attorney with a revocable trust - so someone can complete the task of "funding" the trust, or transferring assets to it, in case the client becomes legally incapacitated before that is done.

    The other reason is that the power of attorney and trusts are parallel "badges of authority." I usually recommend the same person serve, but there can be reasons to do otherwise.

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  • My mother died in Seattle wa. about 15 years ago my older brother said she left no will and so the house was his. true?

    John’s Answer

    I agree with Mr. Nguyen that if your mother dies without a will the intestacy statute would govern the disposition of probatable property. If she died unmarried and the two of you were the only children she gave birth to you would be entitled to the property in equal shares. However, if she held title with your brother as joint tenants with rights of survivorship (JTWROS) then it would have passed to him automatically by operation of law.

    If the house is in King County you can search the records of the King County Recorder to see recordings of deeds regarding it. If your brother sold the house or deeded it to himself it would likely show there. You can also check the Washington Courts website to see whether a probate was ever opened for your mother's estate. If not and the house was not JTWROS you could petition for appointment as administrator to probate the estate and dispose of the assets. If the house belongs to her estate and your brother has been living in it the last 15 years he would owe half the fair market rental value to the estate for the privilege of residing there.

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  • Wills and probate ...is it common for a lawyer to add Article X. Consideration ... to a will

    John’s Answer

    I agree with Allison Foreman. It is unusual for spouses to make mutual contractual wills, but when they do the contract contained in the wills must have consideration from both sides to be enforceable.

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  • Do I have to get a certified appraisal of real estate value for my brother's estate?

    John’s Answer

    Assuming you will not have to file an estate tax return to the State of Washington or the IRS and will sell to a third party through a realtor within a year of death, I would advise that a Comparative Market Analysis (CMA) letter from a reputable local realtor would suffice and, in fact, an arm's length sale within year would be the best evidence of date of death fair market value. You would only need a certified appraisal if you were filing an estate tax return or selling in a non-arm's length transaction such as to yourself or one of the heirs. The primary reason the date of death value matters is for income tax purposes. When the estate sells the property it will recognize gain or loss taxed at capital gains rates measured from the new adjusted basis of the date of death fair market value.

    You do not need to first convey title to yourself as Administrator. As Administrator holding Letters of Administration from the court you are fully authorized by law to sell the property and convey title to the buyer. The title company will not have a concern.

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  • Am I entitled to my dad's money left in bank?

    John’s Answer

    The first thing to determine is how the account is titled. If it is only in your father's name it is a probate asset and if you are his only heir you would be entitled to it after any creditors of his are satisfied. What you will nee is a Small Estate Affidavit, assuming his estate is comprised of no real estate and the value of all of his probatable personal property does not exceed $100,000.00. You present the Small Estate Affidavit to the bank and it should release the funds to you.

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  • We have a check issued to our mother's estate after her death. She had a loving trust and not an estate.

    John’s Answer

    I like Mr. Stutt's suggestion. Engage a local competent probate attorney and ask whether you can avoid probate using a small estate affidavit or procedure in Kansas. Also, you may need to approach several banks, as their policies on this may differ, depending on advice from their attorneys. Recently I had a problem with a national bank here in WA trying to deposit a check from a Canadian bank to the estate of a decedent who had a revocable trust I am trustee of. They would not agree to me endorsing the check made to the order of the estate over to the trust, even with our small estate affidavit here in WA. In the end I did have to open a probate for the estate, obtain an EIN and open a savings account in the name of the estate, but only long enough for the check to clear. Then I immediately transferred the proceeds from the foreign account to the trust's account and closed down the estate's account.

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