BP BHEAD INT S

AN ACT Relating to distribution of estates; amending RCW 11.04.015, 11.12.051, 11.36.010, and 11.36.021; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 11.04.015 and 1974 ex.s. c 117 s 6 are each amended to read as follows:

The net estate of a person dying intestate, or that portion thereof with respect to which the person shall have died intestate, shall descend subject to the provisions of RCW 11.04.250 and 11.02.070, and shall be distributed as follows:

(1) Share of surviving spouse. Unless subsection (2) or (3) of this section applies, the surviving spouse shall receive the following share:

(a) All of the decedent's share of the net community estate; and

(b) One-half of the net separate estate if the intestate is survived by issue; or

(c) Three-quarters of the net separate estate if there is no surviving issue, but the intestate is survived by one or more of his parents, or by one or more of the issue of one or more of his parents; or

(d) All of the net separate estate, if there is no surviving issue nor parent nor issue of parent.

(2) Effect of pending petition for dissolution, separation, or declaration of invalidity. If at the time of the decedent's death there was pending before any court in the United States having proper jurisdiction a petition for legal separation, dissolution of marriage, or declaration of invalidity relating to the decedent and the decedent's spouse, then:

(a) Unless the separation contract specifically provides otherwise, if the decedent and the decedent's spouse entered into a separation contract as contemplated by RCW 26.09.070 before the decedent's death, the surviving spouse shall receive that share of the decedent's estate that he or she would have been entitled to under the terms of the separation contract had the decedent not died; or

(b) If the decedent and the decedent's spouse have not entered into a separation contract as contemplated by RCW 26.09.070 before the decedent's death, then the share of the surviving spouse shall be as determined under subsection (1) of this section. However, the share may be reduced or eliminated by the court at a hearing on a petition for the relief filed by any entity or person having an interest in the estate of the decedent that will be increased by the reduction. Notice of the petition must be given in accordance with RCW 11.96.100. The petition must be filed with the court having jurisdiction over the decedent's estate no later than six months after the date of the decedent's death. In determining whether to reduce or eliminate the share of the surviving spouse, the court shall consider the factors set forth in RCW 26.09.080 and shall further consider the actual intentions of the decedent as demonstrated by clear and convincing evidence. In determining the actual intentions of the decedent, the court shall consider, without limitation, oral or written statements made by the decedent that are otherwise admissible as evidence.

(3) Shares of others than surviving spouse. The share of the net estate not distributable to the surviving spouse, or the entire net estate if there is no surviving spouse, shall descend and be distributed as follows:

(a) To the issue of the intestate; if they are all in the same degree of kinship to the intestate, they shall take equally, or if of unequal degree, then those of more remote degree shall take by representation.

(b) If the intestate not be survived by issue, then to the parent or parents who survive the intestate.

(c) If the intestate not be survived by issue or by either parent, then to those issue of the parent or parents who survive the intestate; if they are all in the same degree of kinship to the intestate, they shall take equally, or, if of unequal degree, then those of more remote degree shall take by representation.

(d) If the intestate not be survived by issue or by either parent, or by any issue of the parent or parents who survive the intestate, then to the grandparent or grandparents who survive the intestate; if both maternal and paternal grandparents survive the intestate, the maternal grandparent or grandparents shall take one-half and the paternal grandparent or grandparents shall take one-half.

(e) If the intestate not be survived by issue or by either parent, or by any issue of the parent or parents or by any grandparent or grandparents, then to those issue of any grandparent or grandparents who survive the intestate; taken as a group, the issue of the maternal grandparent or grandparents shall share equally with the issue of the paternal grandparent or grandparents, also taken as a group; within each such group, all members share equally if they are all in the same degree of kinship to the intestate, or, if some be of unequal degree, then those of more remote degree shall take by representation.

Sec. 2. RCW 11.12.051 and 1994 c 221 s 11 are each amended to read as follows:

(1) If, after making a will, the testator's marriage is dissolved or invalidated, all provisions in the will in favor of or granting any interest or power to the testator's former spouse are revoked, unless the will expressly provides otherwise.

(2) If, after making a will, the testator or the testator's spouse files with any court in the United States having proper jurisdiction a petition for legal separation, dissolution of marriage, or declaration of invalidity relating to the decedent and the decedent's spouse, and the petition is still pending at the time of the testator's death, then:

(a) Unless the will or separation contract expressly provides otherwise, if the testator and the testator's spouse entered into a separation contract as contemplated by RCW 26.09.070 before the decedent's death, the surviving spouse shall receive that share of the decedent's estate that he or she would have been entitled to under the terms of the separation contract had the decedent not died, and all provisions in the will in favor of or granting any interest or power to the testator's former spouse are revoked; or

(b) Unless the will expressly provides otherwise, if the testator and the testator's spouse have not entered into a separation contract as contemplated by RCW 26.09.070 before the testator's death, then all provisions in the testator's will for the surviving spouse shall remain unchanged unless an entity or person having an interest in the estate of the testator that will be increased by reducing or eliminating the interests of the surviving spouse petitions the court for an order reducing or eliminating the interests of the surviving spouse. Notice of the petition must be given in accordance with RCW 11.96.100. The petition must be filed with the court having jurisdiction over the testator's estate no later than six months after the date of the testator's death. In determining whether to reduce or eliminate the interest of the surviving spouse under the terms of the testator's will, the court shall consider the factors set forth in RCW 26.09.080, and shall further consider the actual intentions of the testator as demonstrated by clear and convincing evidence. In determining the actual intentions of the testator, the court shall consider without limitation, express provisions in the will and oral or written statements made by the testator that are otherwise admissible as evidence.

(3) Provisions affected by this section must be interpreted, and property affected passes, as if the former spouse failed to survive the testator, having died at the time of entry of the decree of dissolution or declaration of invalidity. Provisions revoked by this section are revived by the testator's remarriage to the former spouse. Revocation of certain nonprobate transfers is provided under RCW 11.07.010.

((~~(2)~~)) (4) This section is remedial in nature and applies to decrees of dissolution and declarations of invalidity entered before, on, or after January 1, 1995.

Sec. 3. RCW 11.36.010 and 1983 c 51 s 1 are each amended to read as follows:

The following persons are not qualified to act as personal representatives: Corporations, minors, persons of unsound mind, or persons who have been convicted of any felony or of a misdemeanor involving moral turpitude: PROVIDED, That trust companies regularly organized under the laws of this state and national banks when authorized so to do may act as the personal representative of decedents' or incompetents' estates upon petition of any person having a right to such appointment and may act as executors or guardians when so appointed by will: PROVIDED FURTHER, That professional service corporations regularly organized under the laws of this state whose shareholder or shareholders are exclusively attorneys may act as personal representatives: PROVIDED FURTHER, That a surviving spouse of a decedent may not act as personal representative of the decedent's estate if at the time of the decedent's death there is pending before any court of the United States having proper jurisdiction a petition for legal separation, dissolution of marriage, or declaration of invalidity relating to the decedent and the decedent's spouse unless:

(1) The surviving spouse is expressly nominated so to serve in a will executed by the decedent either: (a) After the date the petition was filed, if the petition was filed by the decedent; or (b) after the date the decedent was notified of its filing, if the petition was filed by someone other than the decedent; or

(2) The decedent's will clearly expresses an intention that the surviving spouse serve as personal representative without regard to the pendency of any such proceedings.

No trust company or national bank may qualify as such executor or guardian under any will hereafter drawn by it or its agents or employees, and no salaried attorney of any such company may be allowed any attorney fee for probating any such will or in relation to the administration or settlement of any such estate, and no part of any attorney fee may inure, directly or indirectly, to the benefit of any trust company or national bank. When any person to whom letters testamentary or of administration have been issued becomes disqualified to act because of becoming of unsound mind or being convicted of any crime or misdemeanor involving moral turpitude, the court having jurisdiction shall revoke his or her letters. A nonresident may be appointed to act as personal representative if the nonresident appoints an agent who is a resident of the county where such estate is being probated or who is an attorney of record of the estate, upon whom service of all papers may be made; such appointment to be made in writing and filed by the clerk with other papers of such estate; and, unless bond has been waived as provided by RCW 11.28.185, such nonresident personal representative shall file a bond to be approved by the court.

Sec. 4. RCW 11.36.021 and 1991 c 72 s 1 are each amended to read as follows:

(1) The following may serve as trustees:

(a) Any suitable persons over the age of eighteen years, if not otherwise disqualified;

(b) Any trust company regularly organized under the laws of this state and national banks when authorized to do so;

(c) Any nonprofit corporation, if the articles of incorporation or bylaws of that corporation permit the action and the corporation is in compliance with all applicable provisions of Title 24 RCW;

(d) Any professional service corporations regularly organized under the laws of this state whose shareholder or shareholders are exclusively attorneys; and

(e) Any other entity so authorized under the laws of the state of Washington.

(2) The following are disqualified to serve as trustees:

(a) Minors, persons of unsound mind, or persons who have been convicted of any felony or a misdemeanor involving moral turpitude; ((~~and~~))

(b) A corporation organized under Title 23B RCW that is not authorized under the laws of the state of Washington to act as a fiduciary; and

(c) A surviving spouse of a decedent for a trust that becomes irrevocable on the death of the decedent if the trust was established by the decedent during the decedent's lifetime and at the time of the decedent's death there is pending before any court of the United States having proper jurisdiction a petition for legal separation dissolution of marriage, or declaration of invalidity relating to the decedent and the decedent's spouse, unless:

(i) The surviving spouse is expressly nominated to so serve in a written instrument executed by the decedent either: (A) After the date the petition was filed, if the petition was filed by the decedent; or (B) after the date the decedent was notified of its filing, if the petition was filed by someone other than the decedent; or

(ii) The decedent clearly expresses in the trust document the decedent's intention that the surviving spouse serve as trustee without regard to the pendency of any such proceedings.

NEW SECTION. Sec. 5. Section 2 of this act is remedial in nature and applies to decrees of dissolution and declarations of invalidity entered before, on, or after January 1, 1997.