BILL REQ. #:  H-0148.1 

Read first time 01/13/09.   Referred to Committee on Judiciary.

     AN ACT Relating to the estates of vulnerable adults; amending RCW 11.84.010, 11.84.020, 11.84.025, 11.84.030, 11.84.040, 11.84.050, 11.84.060, 11.84.070, 11.84.080, 11.84.090, 11.84.100, 11.84.110, 11.84.120, 11.84.130, 26.16.120, 41.04.273, and 11.96A.030; and adding new sections to chapter 11.84 RCW.

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

Sec. 1   RCW 11.84.010 and 1965 c 145 s 11.84.010 are each amended to read as follows:
     As used in this chapter:
     (1) "Abuser" means any person who participates, either as a principal or an accessory before the fact, in the willful and unlawful financial exploitation of a vulnerable adult.
     (2) "Decedent" means:
     (a) Any person whose life is taken by a slayer; or
     (b) Any deceased person who, at any time during life in which he or she was a vulnerable adult, was the victim of financial exploitation by an abuser.
     (3) "Financial exploitation" has the same meaning as provided in RCW 74.34.020, as enacted or hereafter amended.
     (4) "Property" includes any real and personal property and any right or interest therein.
     (5) "Slayer" ((shall)) means any person who participates, either as a principal or an accessory before the fact, in the willful and unlawful killing of any other person.
     (((2) "Decedent" shall mean any person whose life is so taken.
     (3) "Property" shall include any real and personal property and any right or interest therein.)) (6) "Vulnerable adult" has the same meaning as provided in RCW 74.34.020.

Sec. 2   RCW 11.84.020 and 1965 c 145 s 11.84.020 are each amended to read as follows:
     No slayer or abuser shall in any way acquire any property or receive any benefit as the result of the death of the decedent, but such property shall pass as provided in the sections following.

Sec. 3   RCW 11.84.025 and 1998 c 292 s 502 are each amended to read as follows:
     Proceeds payable to a slayer or abuser as the beneficiary of any benefits flowing from one of the retirement systems listed in RCW 41.50.030, by virtue of the decedent's membership in the department of retirement systems or by virtue of the death of decedent, shall be paid instead as designated in RCW 41.04.273.

Sec. 4   RCW 11.84.030 and 2008 c 6 s 624 are each amended to read as follows:
     The slayer or abuser shall be deemed to have predeceased the decedent as to property which would have passed from the decedent or his or her estate to the slayer or abuser under the statutes of descent and distribution or have been acquired by statutory right as surviving spouse or surviving domestic partner or under any agreement made with the decedent under the provisions of RCW 26.16.120 as it now exists or is hereafter amended.

Sec. 5   RCW 11.84.040 and 1965 c 145 s 11.84.040 are each amended to read as follows:
     Property which would have passed to or for the benefit of the slayer or abuser by devise or legacy from the decedent shall be distributed as if he or she had predeceased the decedent.

Sec. 6   RCW 11.84.050 and 1965 c 145 s 11.84.050 are each amended to read as follows:
     (1) One-half of any property held by the slayer or abuser and the decedent as joint tenants, joint owners or joint obligees shall pass upon the death of the decedent to his or her estate, and the other half shall pass to his or her estate upon the death of the slayer or abuser, unless the slayer or abuser obtains a separation or severance of the property or a decree granting partition.
     (2) As to property held jointly by three or more persons, including the slayer or abuser and the decedent, any enrichment which would have accrued to the slayer or abuser as a result of the death of the decedent shall pass to the estate of the decedent. If the slayer or abuser becomes the final survivor, one-half of the property shall immediately pass to the estate of the decedent and the other half shall pass to his or her estate upon the death of the slayer or abuser, unless the slayer or abuser obtains a separation or severance of the property or a decree granting partition.
     (3) The provisions of this section shall not affect any enforceable agreement between the parties or any trust arising because a greater proportion of the property has been contributed by one party than by the other.

Sec. 7   RCW 11.84.060 and 1965 c 145 s 11.84.060 are each amended to read as follows:
     Provided the property interest was not obtained through an act of financial exploitation:
     (1) Property in which the slayer or abuser holds a reversion or vested remainder and would have obtained the right of present possession upon the death of the decedent shall pass to the estate of the decedent during the period of the life expectancy of the decedent((; if he)).
     (2) If the slayer or abuser held the particular estate or if the particular estate is held by a third person it shall remain in his or her hands for such period.

Sec. 8   RCW 11.84.070 and 1965 c 145 s 11.84.070 are each amended to read as follows:
     Any interest in property whether vested or not, held by the slayer or abuser, subject to be divested, diminished in any way or extinguished, if the decedent survives him or her or lives to a certain age, shall be held by the slayer or abuser during his or her lifetime or until the decedent would have reached such age, but shall then pass as if the decedent had died immediately thereafter.

Sec. 9   RCW 11.84.080 and 1965 c 145 s 11.84.080 are each amended to read as follows:
     As to any contingent remainder or executory or other future interest held by the slayer or abuser, subject to become vested in him or her or increased in any way for him or her upon the condition of the death of the decedent:
     (1) If the interest would not have become vested or increased if he or she had predeceased the decedent, he or she shall be deemed to have so predeceased the decedent;
     (2) In any case the interest shall not be vested or increased during the period of the life expectancy of the decedent.

Sec. 10   RCW 11.84.090 and 1965 c 145 s 11.84.090 are each amended to read as follows:
     (1) Property appointed by the will of the decedent to or for the benefit of the slayer or abuser shall be distributed as if the slayer or abuser had predeceased the decedent.
     (2) Property held either presently or in remainder by the slayer or abuser, subject to be divested by the exercise by the decedent of a power of revocation or a general power of appointment shall pass to the estate of the decedent, and property so held by the slayer or abuser, subject to be divested by the exercise by the decedent of a power of appointment to a particular person or persons or to a class of persons, shall pass to such person or persons, or in equal shares to the members of such class of persons, exclusive of the slayer or abuser.

Sec. 11   RCW 11.84.100 and 1965 c 145 s 11.84.100 are each amended to read as follows:
     (1) Insurance proceeds payable to the slayer or abuser as the beneficiary or assignee of any policy or certificate of insurance on the life of the decedent, or as the survivor of a joint life policy, shall be paid instead to the estate of the decedent, unless the policy or certificate designate some person other than the slayer or abuser or his or her estate as secondary beneficiary to him or her and in which case such proceeds shall be paid to such secondary beneficiary in accordance with the applicable terms of the policy.
     (2) If the decedent is beneficiary or assignee of any policy or certificate of insurance on the life of the slayer or abuser, the proceeds shall be paid to the estate of the decedent upon the death of the slayer or abuser, unless the policy names some person other than the slayer or abuser or his or her estate as secondary beneficiary, or unless the slayer or abuser by naming a new beneficiary or assigning the policy performs an act which would have deprived the decedent of his or her interest in the policy if he or she had been living.

Sec. 12   RCW 11.84.110 and 1965 c 145 s 11.84.110 are each amended to read as follows:
     Any insurance company making payment according to the terms of its policy or any bank or other person performing an obligation for the slayer or abuser as one of several joint obligees shall not be subjected to additional liability by the terms of this chapter if such payment or performance is made without written notice, at its home office or at an individual's home or business address, of the killing by a slayer or financial exploitation by an abuser.

Sec. 13   RCW 11.84.120 and 1965 c 145 s 11.84.120 are each amended to read as follows:
     The provisions of this chapter shall not affect the rights of any person who, before the interests of the slayer or abuser have been adjudicated, purchases or has agreed to purchase, from the slayer or abuser for value and without notice property which the slayer or abuser would have acquired except for the terms of this chapter, but all proceeds received by the slayer or abuser from such sale shall be held by him or her in trust for the persons entitled to the property under the provisions of this chapter, and the slayer or abuser shall also be liable both for any portion of such proceeds which he or she may have dissipated and for any difference between the actual value of the property and the amount of such proceeds.

Sec. 14   RCW 11.84.130 and 1965 c 145 s 11.84.130 are each amended to read as follows:
     ((The)) Any record of ((his)) conviction ((of)) for having participated in the ((wilful)) willful and unlawful killing of the decedent or in conduct constituting financial exploitation against the decedent shall be admissible in evidence against a claimant of property in any civil ((action)) proceeding arising under this chapter.

NEW SECTION.  Sec. 15   A new section is added to chapter 11.84 RCW to read as follows:
     (1) A final judgment of conviction for the willful and unlawful killing of a decedent is conclusive for purposes of determining whether a person is a slayer under this section.
     (2) In the absence of a criminal conviction, a superior court finding by a preponderance of the evidence that a person participated in the willful and unlawful killing of the decedent is conclusive for purposes of determining whether a person is a slayer under this section.

NEW SECTION.  Sec. 16   A new section is added to chapter 11.84 RCW to read as follows:
     (1) A final judgment of conviction for the financial exploitation of a decedent is conclusive for purposes of determining whether a person is an abuser under this section.
     (2) In the absence of a criminal conviction, a superior court finding by clear, cogent, and convincing evidence that a person participated in conduct constituting financial exploitation against the decedent is conclusive for purposes of determining whether a person is an abuser under this section.

NEW SECTION.  Sec. 17   A new section is added to chapter 11.84 RCW to read as follows:
     (1) In determining whether a person is an abuser for purposes of this chapter, the court must find by clear, cogent, and convincing evidence that:     
     (a) The decedent was a vulnerable adult at the time the alleged financial exploitation took place; and
     (b) The conduct constituting financial exploitation was willful action or inaction causing injury to the property of the vulnerable adult.
     (2) A finding of abuse by the department of social and health services is not admissible for any purpose in any claim or proceeding under this chapter.
     (3) Except as provided in subsection (2) of this section, evidence of financial exploitation is admissible if it is not inadmissible pursuant to the rules of evidence.

NEW SECTION.  Sec. 18   A new section is added to chapter 11.84 RCW to read as follows:
     Notwithstanding the provisions of this chapter:
     (1) An abuser is entitled to acquire or receive an interest in property or any other benefit described in this chapter if the court determines by clear, cogent, and convincing evidence that the decedent:
     (a) Knew of the financial exploitation; and
     (b) Subsequently ratified his or her intent to transfer the property interest or benefit to that person.
     (2) The court may consider the record of proceedings and in its discretion allow an abuser to acquire or receive an interest in property or any other benefit described in this chapter in any manner the court deems equitable. In determining what is equitable, the court may consider, among other things:
     (a) The various elements of the decedent's dispositive scheme;
     (b) The decedent's likely intent given the totality of the circumstances; and
     (c) The degree of harm resulting from the abuser's financial exploitation of the decedent.

Sec. 19   RCW 26.16.120 and 2008 c 6 s 612 are each amended to read as follows:
     Nothing contained in any of the provisions of this chapter or in any law of this state, shall prevent both spouses or both domestic partners from jointly entering into any agreement concerning the status or disposition of the whole or any portion of the community property, then owned by them or afterwards to be acquired, to take effect upon the death of either. But such agreement may be made at any time by both spouses or both domestic partners by the execution of an instrument in writing under their hands and seals, and to be witnessed, acknowledged and certified in the same manner as deeds to real estate are required to be, under the laws of the state, and the same may at any time thereafter be altered or amended in the same manner. Such agreement shall not derogate from the right of creditors; nor be construed to curtail the powers of the superior court to set aside or cancel such agreement for fraud or under some other recognized head of equity jurisdiction, at the suit of either party; nor prevent the application of laws governing the community property and inheritance rights of slayers or abusers under chapter 11.84 RCW.

Sec. 20   RCW 41.04.273 and 1998 c 292 s 501 are each amended to read as follows:
     (1) For purposes of this section, the following definitions shall apply:
     (a) (("Slayer" means a slayer as defined)) "Abuser" has the same meaning as provided in RCW 11.84.010.
     (b) "Decedent" means any person ((whose life is taken by a slayer, and)) who is entitled to benefits from the Washington state department of retirement systems by written designation or by operation of law:
     (i) Whose life is taken by a slayer; or
     (ii) Who is deceased and who, at any time during life in which he or she was a vulnerable adult, was the victim of financial exploitation by an abuser, except as provided in section 18 of this act.
     (c) "Slayer" means a slayer as defined in RCW 11.84.010.
     (2) Property that would have passed to or for the benefit of a beneficiary under one of the retirement systems listed in RCW 41.50.030 shall not pass to that beneficiary if the beneficiary was a slayer or abuser of the decedent and the property shall be distributed as if the slayer or abuser had predeceased the decedent.
     (3) A slayer or abuser is deemed to have predeceased the decedent as to property which, by designation or by operation of law, would have passed from the decedent to the slayer or abuser because of the decedent's entitlement to benefits under one of the retirement systems listed in RCW 41.50.030.
     (4)(a) The department of retirement systems has no affirmative duty to determine whether a beneficiary is, or is alleged to be, a slayer or abuser. However, upon receipt of written notice that a beneficiary is a defendant in a civil lawsuit or probate proceeding that alleges the beneficiary is a slayer or abuser, or is charged with a crime that, if committed, means the beneficiary is a slayer or abuser, the department of retirement systems shall determine whether the beneficiary is a defendant in such a civil ((suit)) proceeding or has been formally charged in court with the crime, or both. If so, the department shall withhold payment of any benefits until:
     (i) The case or charges, or both if both are pending, are dismissed;
     (ii) The beneficiary is found not guilty in the criminal case or prevails in the civil ((suit)) proceeding, or both if both are pending; or
     (iii) The beneficiary is convicted or is found to be a slayer or abuser in the civil ((suit)) proceeding.
     (b) If the case or charges, or both if both are pending, are dismissed or if a beneficiary is found not guilty or prevails in the civil ((suit)) proceeding, or both if both are pending, the department shall pay the beneficiary the benefits the beneficiary is entitled to receive. If the beneficiary is convicted or found to be a slayer or abuser in a civil ((suit)) proceeding, the department shall distribute the benefits according to subsection (2) of this section.
     (5) ((The slayer's)) Any record of conviction for having participated in the willful and unlawful killing of the decedent or superior court finding of financial exploitation as defined in RCW 74.34.020 shall be admissible in evidence against a claimant of property in any civil action arising under this section.
     (6) In the absence of a criminal conviction, a superior court may determine:
     (a) By a preponderance of the evidence whether a person participated in the willful and unlawful killing of the decedent;
     (b) By clear, cogent, and convincing evidence whether a person participated in conduct constituting financial exploitation against the decedent, as provided in chapter 11.84 RCW.
     (7) This section shall not subject the department of retirement systems to liability for payment made to a slayer or abuser or alleged slayer or abuser, prior to the department's receipt of written notice that the slayer or abuser has been convicted of, or the alleged slayer or abuser has been formally criminally or civilly charged in court with, the death or financial exploitation of the decedent. If the conviction or civil judgment of a slayer or abuser is reversed on appeal, the department of retirement systems shall not be liable for payment made prior to the receipt of written notice of the reversal to a beneficiary other than the person whose conviction or civil judgment is reversed.

Sec. 21   RCW 11.96A.030 and 2008 c 6 s 927 are each amended to read as follows:
     The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Matter" includes any issue, question, or dispute involving:
     (a) The determination of any class of creditors, devisees, legatees, heirs, next of kin, or other persons interested in an estate, trust, nonprobate asset, or with respect to any other asset or property interest passing at death;
     (b) The direction of a personal representative or trustee to do or to abstain from doing any act in a fiduciary capacity;
     (c) The determination of any question arising in the administration of an estate or trust, or with respect to any nonprobate asset, or with respect to any other asset or property interest passing at death, that may include, without limitation, questions relating to: (i) The construction of wills, trusts, community property agreements, and other writings; (ii) a change of personal representative or trustee; (iii) a change of the situs of a trust; (iv) an accounting from a personal representative or trustee; or (v) the determination of fees for a personal representative or trustee;
     (d) The grant to a personal representative or trustee of any necessary or desirable power not otherwise granted in the governing instrument or given by law;
     (e) An action or proceeding under chapter 11.84 RCW;
     (f) The amendment, reformation, or conformation of a will or a trust instrument to comply with statutes and regulations of the United States internal revenue service in order to achieve qualification for deductions, elections, and other tax requirements, including the qualification of any gift thereunder for the benefit of a surviving spouse who is not a citizen of the United States for the estate tax marital deduction permitted by federal law, including the addition of mandatory governing instrument requirements for a qualified domestic trust under section 2056A of the internal revenue code, the qualification of any gift thereunder as a qualified conservation easement as permitted by federal law, or the qualification of any gift for the charitable estate tax deduction permitted by federal law, including the addition of mandatory governing instrument requirements for a charitable remainder trust; and
     (((f))) (g) With respect to any nonprobate asset, or with respect to any other asset or property interest passing at death, including joint tenancy property, property subject to a community property agreement, or assets subject to a pay on death or transfer on death designation:
     (i) The ascertaining of any class of creditors or others for purposes of chapter 11.18 or 11.42 RCW;
     (ii) The ordering of a qualified person, the notice agent, or resident agent, as those terms are defined in chapter 11.42 RCW, or any combination of them, to do or abstain from doing any particular act with respect to a nonprobate asset;
     (iii) The ordering of a custodian of any of the decedent's records relating to a nonprobate asset to do or abstain from doing any particular act with respect to those records;
     (iv) The determination of any question arising in the administration under chapter 11.18 or 11.42 RCW of a nonprobate asset;
     (v) The determination of any questions relating to the abatement, rights of creditors, or other matter relating to the administration, settlement, or final disposition of a nonprobate asset under this title;
     (vi) The resolution of any matter referencing this chapter, including a determination of any questions relating to the ownership or distribution of an individual retirement account on the death of the spouse of the account holder as contemplated by RCW 6.15.020(6);
     (vii) The resolution of any other matter that could affect the nonprobate asset.
     (2) "Notice agent" has the meanings given in RCW 11.42.010.
     (3) "Nonprobate assets" has the meaning given in RCW 11.02.005.
     (4) "Party" or "parties" means each of the following persons who has an interest in the subject of the particular proceeding and whose name and address are known to, or are reasonably ascertainable by, the petitioner:
     (a) The trustor if living;
     (b) The trustee;
     (c) The personal representative;
     (d) An heir;
     (e) A beneficiary, including devisees, legatees, and trust beneficiaries;
     (f) The surviving spouse or surviving domestic partner of a decedent with respect to his or her interest in the decedent's property;
     (g) A guardian ad litem;
     (h) A creditor;
     (i) Any other person who has an interest in the subject of the particular proceeding;
     (j) The attorney general if required under RCW 11.110.120;
     (k) Any duly appointed and acting legal representative of a party such as a guardian, special representative, or attorney-in-fact;
     (l) Where applicable, the virtual representative of any person described in this subsection the giving of notice to whom would meet notice requirements as provided in RCW 11.96A.120;
     (m) Any notice agent, resident agent, or a qualified person, as those terms are defined in chapter 11.42 RCW; and
     (n) The owner or the personal representative of the estate of the deceased owner of the nonprobate asset that is the subject of the particular proceeding, if the subject of the particular proceeding relates to the beneficiary's liability to a decedent's estate or creditors under RCW 11.18.200.
     (5) "Persons interested in the estate or trust" means the trustor, if living, all persons beneficially interested in the estate or trust, persons holding powers over the trust or estate assets, the attorney general in the case of any charitable trust where the attorney general would be a necessary party to judicial proceedings concerning the trust, and any personal representative or trustee of the estate or trust.
     (6) "Principal place of administration of the trust" means the trustee's usual place of business where the day-to-day records pertaining to the trust are kept, or the trustee's residence if the trustee has no such place of business.
     (7) The "situs" of a trust means the place where the principal place of administration of the trust is located, unless otherwise provided in the instrument creating the trust.
     (8) "Trustee" means any acting and qualified trustee of the trust.
     (9) "Representative" and other similar terms refer to a person who virtually represents another under RCW 11.96A.120.
     (10) "Citation" or "cite" and other similar terms, when required of a person interested in the estate or trust or a party to a petition, means to give notice as required under RCW 11.96A.100. "Citation" or "cite" and other similar terms, when required of the court, means to order, as authorized under RCW 11.96A.020 and 11.96A.060, and as authorized by law.

NEW SECTION.  Sec. 22   A new section is added to chapter 11.84 RCW to read as follows:
     The provisions of this act are supplemental to, and do not derogate from, any other statutory or common law proceedings, theories, or remedies including, but not limited to, the common law allocation of the burden of proof or production among the parties.