BILL REQ. #: H-0663.3
| State of Washington | 62nd Legislature | 2011 Regular Session |
READ FIRST TIME 01/21/11.
AN ACT Relating to trusts and estates; amending RCW 11.02.005, 11.28.237, 11.68.090, 11.94.050, 11.96A.030, 11.96A.050, 11.96A.070, 11.96A.110, 11.96A.120, 11.97.010, 11.98.009, 11.98.039, 11.98.045, 11.98.051, 11.98.055, 11.98.070, and 11.100.090; adding new sections to chapter 11.96A RCW; adding a new section to chapter 11.97 RCW; adding new sections to chapter 11.98 RCW; adding a new chapter to Title 11 RCW; creating a new section; and providing an effective date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 11.02.005 and 2008 c 6 s 901 are each amended to read
as follows:
When used in this title, unless otherwise required from the
context:
(1) "Personal representative" includes executor, administrator,
special administrator, and guardian or limited guardian and special
representative.
(2) "Net estate" refers to the real and personal property of a
decedent exclusive of homestead rights, exempt property, the family
allowance and enforceable claims against, and debts of, the deceased or
the estate.
(3) "Representation" refers to a method of determining distribution
in which the takers are in unequal degrees of kinship with respect to
a decedent, and is accomplished as follows: After first determining
who, of those entitled to share in the estate, are in the nearest
degree of kinship, the estate is divided into equal shares, the number
of shares being the sum of the number of persons who survive the
decedent who are in the nearest degree of kinship and the number of
persons in the same degree of kinship who died before the decedent but
who left issue surviving the decedent; each share of a deceased person
in the nearest degree shall be divided among those of the deceased
person's issue who survive the decedent and have no ancestor then
living who is in the line of relationship between them and the
decedent, those more remote in degree taking together the share which
their ancestor would have taken had he or she survived the decedent.
(4) "Issue" means all the lineal descendants of an individual. An
adopted individual is a lineal descendant of each of his or her
adoptive parents and of all individuals with regard to which each
adoptive parent is a lineal descendant. A child conceived prior to the
death of a parent but born after the death of the deceased parent is
considered to be the surviving issue of the deceased parent for
purposes of this title.
(5) "Degree of kinship" means the degree of kinship as computed
according to the rules of the civil law; that is, by counting upward
from the intestate to the nearest common ancestor and then downward to
the relative, the degree of kinship being the sum of these two counts.
(6) "Heirs" denotes those persons, including the surviving spouse
or surviving domestic partner, who are entitled under the statutes of
intestate succession to the real and personal property of a decedent on
the decedent's death intestate.
(7) "Real estate" includes, except as otherwise specifically
provided herein, all lands, tenements, and hereditaments, and all
rights thereto, and all interest therein possessed and claimed in fee
simple, or for the life of a third person.
(8) "Will" means an instrument validly executed as required by RCW
11.12.020.
(9) "Codicil" means a will that modifies or partially revokes an
existing earlier will. A codicil need not refer to or be attached to
the earlier will.
(10) "Guardian" or "limited guardian" means a personal
representative of the person or estate of an incompetent or disabled
person as defined in RCW 11.88.010 and the term may be used in lieu of
"personal representative" wherever required by context.
(11) "Administrator" means a personal representative of the estate
of a decedent and the term may be used in lieu of "personal
representative" wherever required by context.
(12) "Executor" means a personal representative of the estate of a
decedent appointed by will and the term may be used in lieu of
"personal representative" wherever required by context.
(13) "Special administrator" means a personal representative of the
estate of a decedent appointed for limited purposes and the term may be
used in lieu of "personal representative" wherever required by context.
(14) "Trustee" means an original, added, or successor trustee and
includes the state, or any agency thereof, when it is acting as the
trustee of a trust to which chapter 11.98 RCW applies.
(15) "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. "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; a right or
interest passing by descent and distribution under chapter 11.04 RCW;
a right or interest if, before death, the person has irrevocably
transferred the right or interest, the person has waived the power to
transfer it or, in the case of contractual arrangement, the person has
waived the unilateral right to rescind or modify the arrangement; or a
right or interest held by the person solely in a fiduciary capacity.
For the definition of "nonprobate asset" relating to revocation of a
provision for a former spouse upon dissolution of marriage or
declaration of invalidity of marriage, RCW 11.07.010(5) applies. For
the definition of "nonprobate asset" relating to revocation of a
provision for a former spouse upon dissolution of marriage or
declaration of invalidity of marriage, see RCW 11.07.010(5). For the
definition of "nonprobate asset" relating to testamentary disposition
of nonprobate assets, see RCW 11.11.010(7).
(16) "Internal Revenue Code" means the United States Internal
Revenue Code of 1986, as amended or renumbered as of January 1, 2001.
(17) References to "section 2033A" of the Internal Revenue Code in
wills, trust agreements, powers of appointment, beneficiary
designations, and other instruments governed by or subject to this
title shall be deemed to refer to the comparable or corresponding
provisions of section 2057 of the Internal Revenue Code, as added by
section 6006(b) of the Internal Revenue Service Restructuring Act of
1998 (H.R. 2676, P.L. 105-206); and references to the section 2033A
"exclusion" shall be deemed to mean the section 2057 deduction.
(18) "Surviving spouse" or "surviving domestic partner" does not
include an individual whose marriage to or state registered domestic
partnership with the decedent has been terminated, dissolved, or
invalidated unless, by virtue of a subsequent marriage or state
registered domestic partnership, he or she is married to or in a
domestic partnership with the decedent at the time of death. A decree
of separation that does not terminate the status of spouses or domestic
partners is not a dissolution or invalidation for purposes of this
subsection.
(19) "Trustor" means a person, including a testator, who creates,
or contributes property to, a trust.
(20) "Settlor" has the same meaning as provided for "trustor" in
this section.
Words that import the singular number may also be applied to the
plural of persons and things.
Words importing the masculine gender only may be extended to
females also.
Sec. 2 RCW 11.28.237 and 1997 c 252 s 85 are each amended to read
as follows:
(1) Within twenty days after appointment, the personal
representative of the estate of a decedent shall cause written notice
of his or her appointment and the pendency of said probate proceedings,
to be served personally or by mail to each heir, legatee and devisee of
the estate and each beneficiary or transferee of a nonprobate asset of
the decedent whose names and addresses are known to him or her, and
proof of such mailing or service shall be made by affidavit and filed
in the cause. If a trust is a legatee or devisee of the estate or a
beneficiary or transferee of a nonprobate asset of the decedent, then
notice to the trustee is sufficient.
(2) If the personal representative does not otherwise give notice
to creditors under chapter 11.40 RCW within thirty days after
appointment, the personal representative shall cause written notice of
his or her appointment and the pendency of the probate proceedings to
be mailed to the state of Washington department of social and health
services' office of financial recovery, and proof of the mailing shall
be made by affidavit and filed in the cause.
Sec. 3 RCW 11.68.090 and 2003 c 254 s 3 are each amended to read
as follows:
(1) Any personal representative acting under nonintervention powers
may borrow money on the general credit of the estate and may mortgage,
encumber, lease, sell, exchange, convey, and otherwise have the same
powers, and be subject to the same limitations of liability, that a
trustee has under ((RCW 11.98.070 and)) chapters 11.98, 11.100, and
11.102 RCW with regard to the assets of the estate, both real and
personal, all without an order of court and without notice, approval,
or confirmation, and in all other respects administer and settle the
estate of the decedent without intervention of court. Except as
otherwise specifically provided in this title or by order of court, a
personal representative acting under nonintervention powers may
exercise the powers granted to a personal representative under chapter
11.76 RCW but is not obligated to comply with the duties imposed on
personal representatives by that chapter. A party to such a
transaction and the party's successors in interest are entitled to have
it conclusively presumed that the transaction is necessary for the
administration of the decedent's estate.
(2) Except as otherwise provided in chapter 11.108 RCW or elsewhere
in order to preserve a marital deduction from estate taxes, a testator
may by a will relieve the personal representative from any or all of
the duties, restrictions, and liabilities imposed: Under common law;
by chapters 11.54, 11.56, 11.100, 11.102, and 11.104A RCW; or by RCW
11.28.270 and 11.28.280, 11.68.095, and 11.98.070. In addition, a
testator may likewise alter or deny any or all of the privileges and
powers conferred by this title, and may add duties, restrictions,
liabilities, privileges, or powers to those imposed or granted by this
title. If any common law or any statute referenced earlier in this
subsection is in conflict with a will, the will controls whether or not
specific reference is made in the will to this section. However,
notwithstanding the rest of this subsection, a personal representative
may not be relieved of the duty to act in good faith and with honest
judgment.
Sec. 4 RCW 11.94.050 and 2001 c 203 s 12 are each amended to read
as follows:
(1) Although a designated attorney-in-fact or agent has all powers
of absolute ownership of the principal, or the document has language to
indicate that the attorney-in-fact or agent shall have all the powers
the principal would have if alive and competent, the attorney-in-fact
or agent shall not have the power to make, amend, alter, or revoke the
principal's wills or codicils, and shall not have the power, unless
specifically provided otherwise in the document: To make, amend,
alter, or revoke any of the principal's life insurance, annuity, or
similar contract beneficiary designations, employee benefit plan
beneficiary designations, trust agreements, registration of the
principal's securities in beneficiary form, payable on death or
transfer on death beneficiary designations, designation of persons as
joint tenants with right of survivorship with the principal with
respect to any of the principal's property, community property
agreements, or any other provisions for nonprobate transfer at death
contained in nontestamentary instruments described in RCW 11.02.091; to
make any gifts of property owned by the principal; to exercise the
principal's rights to distribute property in trust or cause a trustee
to distribute property in trust to the extent consistent with the terms
of the trust agreement; to make transfers of property to any trust
(whether or not created by the principal) unless the trust benefits the
principal alone and does not have dispositive provisions which are
different from those which would have governed the property had it not
been transferred into the trust((,)); or to disclaim property.
(2) Nothing in subsection (1) of this section prohibits an
attorney-in-fact or agent from making any transfer of resources not
prohibited under chapter 74.09 RCW when the transfer is for the purpose
of qualifying the principal for medical assistance or the limited
casualty program for the medically needy.
Sec. 5 RCW 11.96A.030 and 2009 c 525 s 20 are each amended to
read as follows:
The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1) "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.
(2) "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))
(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; and
(h) The reformation of a will or trust to correct a mistake under
section 11 of this act.
(3) "Nonprobate assets" has the meaning given in RCW 11.02.005.
(4) "Notice agent" has the meanings given in RCW 11.42.010.
(5) "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.
(6) "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.
(7) (("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.)) "Representative" and other similar terms refer to a person
who virtually represents another under RCW 11.96A.120.
(8)
(((9) 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.
(10)
Sec. 6 RCW 11.96A.050 and 2001 c 203 s 10 are each amended to
read as follows:
(1) Venue for proceedings pertaining to trusts shall be:
(a) For testamentary trusts established under wills probated in the
state of Washington, in the superior court of the county where
((letters testamentary were granted to a personal representative of the
estate subject to the will or, in the alternative, the superior court
of the county of the situs of the trust; and)) the probate of the
will is being administered or was completed or, in the alternative, the
superior court of the county where any beneficiary of the trust
entitled to notice under RCW 11.97.010 resides, the county where any
trustee resides or has a place of business, or the county where any
real property that is an asset of the trust is located; and
(b) For all other trusts, in the superior court of the county in
which the situs of the trust is located, or, if the situs is not
located in the state of Washington, in any county
(b) For all other trusts, in the superior court of the county where
any beneficiary of the trust entitled to notice under RCW 11.97.010
resides, the county where any trustee resides or has a place of
business, or the county where any real property that is an asset of the
trust is located. If no county has venue for proceedings pertaining to
a trust under the preceding sentence, then in any county.
(2) A party to a proceeding pertaining to a trust may request that
venue be changed. If the request is made within four months of the
giving of the first notice of a proceeding pertaining to the trust,
except for good cause shown, venue must be moved to the county with the
strongest connection to the trust as determined by the court,
considering such factors as the residence of a beneficiary of the trust
entitled to notice under RCW 11.97.010, the residence or place of
business of a trustee, and the location of any real property that is an
asset of the trust.
(3) Venue for proceedings subject to chapter 11.88 or 11.92 RCW
shall be determined under the provisions of those chapters.
(((3))) (4) Venue for proceedings pertaining to the probate of
wills, the administration and disposition of a decedent's property,
including nonprobate assets, and any other matter not identified in
subsection (1) ((or)), (2), or (3) of this section, ((may)) shall be in
any county in the state of Washington that the petitioner selects. A
party to a proceeding may request that venue be changed if the request
is made within four months of the mailing of the notice of appointment
and pendency of probate required by RCW 11.28.237, and except for good
cause shown, venue must be moved as follows:
(a) If the decedent was a resident of the state of Washington at
the time of death, to the county of the decedent's residence; or
(b) If the decedent was not a resident of the state of Washington
at the time of death, to any of the following:
(i) Any county in which any part of the probate estate might be;
(ii) If there are no probate assets, any county where any
nonprobate asset might be; or
(iii) The county in which the decedent died.
(((4))) (5) Once letters testamentary or of administration have
been granted in the state of Washington, all orders, settlements,
trials, and other proceedings under this title shall be had or made in
the county in which such letters have been granted unless venue is
moved as provided in subsection (((2))) (4) of this section.
(((5))) (6) Venue for proceedings pertaining to powers of attorney
shall be in the superior court of the county of the principal's
residence, except for good cause shown.
(((6))) (7) If venue is moved, an action taken before venue is
changed is not invalid because of the venue.
(((7))) (8) Any request to change venue that is made more than four
months after the commencement of the action may be granted in the
discretion of the court.
Sec. 7 RCW 11.96A.070 and 1999 c 42 s 204 are each amended to
read as follows:
(1)(a) ((An action against the trustee of an express trust for a
breach of fiduciary duty must be brought within three years from the
earlier of: (i) The time the alleged breach was discovered or
reasonably should have been discovered; (ii) the discharge of a trustee
from the trust as provided in RCW 11.98.041 or by agreement of the
parties under RCW 11.96A.220; or (iii) the time of termination of the
trust or the trustee's repudiation of the trust.)) A beneficiary of an express trust may not commence a
proceeding against a trustee for breach of trust more than three years
after the date the beneficiary or a representative of the beneficiary
was sent a report that adequately disclosed the existence of a
potential claim for breach of trust and informed the beneficiary of the
time allowed for commencing a proceeding.
(b) The provisions of (a) of this subsection apply to all express
trusts, no matter when created, however it shall not apply to express
trusts created before June 10, 1959, until the date that is three years
after January 1, 2000.
(c)
(b) A report adequately discloses the existence of a potential
claim for breach of trust if it provides sufficient information so that
the beneficiary or representative knows of the potential claim or
should have inquired into its existence. A report that includes the
following information is presumed to have provided such sufficient
information regarding the existence of potential claims for breach of
trust:
(i) A statement of receipts and disbursements of principal and
income that have occurred during the accounting period;
(ii) A statement of the assets and liabilities of the trust and
their values at the beginning and end of the period;
(iii) The trustee's compensation for the period;
(iv) The agents hired by the trustee, their relationship to the
trustee, if any, and their compensation, for the period;
(v) Disclosure of any pledge, mortgage, option, or lease of trust
property, or other agreement affecting trust property binding for a
period of five years or more that was granted or entered into during
the accounting period;
(vi) Disclosure of all transactions during the period that are
equivalent to one of the types of transactions described in section 32
of this act or otherwise could have been affected by a conflict between
the trustee's fiduciary and personal interests;
(vii) A statement that the recipient of the account information may
petition the superior court pursuant to chapter 11.106 RCW to obtain
review of the statement and of acts of the trustee disclosed in the
statement; and
(viii) A statement that claims against the trustee for breach of
trust may not be made after the expiration of three years from the date
the beneficiary receives the statement.
(c) If (a) of this subsection does not apply, a judicial proceeding
by a beneficiary against a trustee for breach of trust must be
commenced within three years after the first to occur of:
(i) The removal, resignation, or death of the trustee;
(ii) The termination of the beneficiary's interest in the trust; or
(iii) The termination of the trust.
(d) For purposes of this section, "express trust" does not include
resulting trusts, constructive trusts, business trusts in which
certificates of beneficial interest are issued to the beneficiary,
investment trusts, voting trusts, trusts in the nature of mortgages or
pledges, ((trusts created by the judgment or decree of a court not
sitting in probate,)) liquidation trusts, or trusts for the sole
purpose of paying dividends, interest, interest coupons, salaries,
wages, pensions, or profits, trusts created in deposits in any
financial institution under chapter 30.22 RCW, unless any such trust
that is created in writing specifically incorporates this chapter in
whole or in part.
(2) Except as provided in RCW 11.96A.250 with respect to special
representatives, an action against a personal representative for
alleged breach of fiduciary duty by an heir, legatee, or other
interested party must be brought before discharge of the personal
representative.
(3) The legislature hereby confirms the long standing public policy
of promoting the prompt and efficient resolution of matters involving
trusts and estates. To further implement this policy, the legislature
adopts the following statutory provisions in order to: (a) Encourage
and facilitate the participation of qualified individuals as special
representatives; (b) serve the public's interest in having a prompt and
efficient resolution of matters involving trusts or estates; and (c)
promote complete and final resolution of proceedings involving trusts
and estates.
(i) Actions against a special representative must be brought before
the earlier of:
(A) Three years from the discharge of the special representative as
provided in RCW 11.96A.250; or
(B) The entry of an order by a court of competent jurisdiction
under RCW 11.96A.240 approving the written agreement executed by all
interested parties in accord with the provisions of RCW 11.96A.220.
(ii) If a legal action is commenced against the special
representative after the expiration of the period during which claims
may be brought against the special representative as provided in (c)(i)
of this subsection, alleging property damage, property loss, or other
civil liability caused by or resulting from an alleged act or omission
of the special representative arising out of or by reason of the
special representative's duties or actions as special representative,
the special representative shall be indemnified: (A) From the assets
held in the trust or comprising the estate involved in the dispute; and
(B) by the persons bringing the legal action, for all expenses,
attorneys' fees, judgments, settlements, decrees, or amounts due and
owing or paid in satisfaction of or incurred in the defense of the
legal action. To the extent possible, indemnification must be made
first by the persons bringing the legal action, second from that
portion of the trust or estate that is held for the benefit of, or has
been distributed or applied to, the persons bringing the legal action,
and third from the other assets held in the trust or comprising the
estate involved in the dispute.
(4) The tolling provisions of RCW 4.16.190 apply to this chapter
except that the running of a statute of limitations under subsection
(1) or (2) of this section, or any other applicable statute of
limitations for any matter that is the subject of dispute under this
chapter, is not tolled as to an individual who had a guardian ad litem,
limited or general guardian of the estate, or a special representative
to represent the person during the probate or dispute resolution
proceeding.
Sec. 8 RCW 11.96A.110 and 1999 c 42 s 304 are each amended to
read as follows:
(1) Subject to RCW 11.96A.160, in all judicial proceedings under
this title that require notice, the notice must be personally served on
or mailed to all parties or the parties' virtual representatives at
least twenty days before the hearing on the petition unless a different
period is provided by statute or ordered by the court. The date of
service shall be determined under the rules of civil procedure.
Notwithstanding the foregoing, notice that is provided in an electronic
transmission and electronically transmitted complies with this section
if the party receiving notice has previously consented in a record
delivered to the party giving notice to receiving notice by electronic
transmission. Consent to receive notice by electronic transmission may
be revoked at any time by a record delivered to the party giving
notice. Consent is deemed revoked if the party giving notice is unable
to electronically transmit two consecutive notices given in accordance
with the consent.
(2) Proof of the service ((or)), mailing, or electronic delivery
required in this section must be made by affidavit or declaration filed
at or before the hearing.
(3) For the purposes of this title, the terms "electronic
transmission" and "electronically transmitted" have the same meaning as
set forth in RCW 23B.01.400.
Sec. 9 RCW 11.96A.120 and 2008 c 6 s 928 are each amended to read
as follows:
(1) With respect to a particular matter that affects a trust,
probate estate, guardianship estate, or property subject to a power of
attorney, in which the interests of such fiduciary estate and the
beneficiaries are not in conflict:
(a) A guardian may represent and bind the estate that the guardian
controls;
(b) An agent having authority to act with respect to the particular
question or dispute may represent and bind the principal;
(c) A trustee may represent and bind the beneficiaries of the
trust; and
(d) A personal representative of a decedent's estate may represent
and bind persons interested in the estate.
(2) This section is intended to adopt the common law concept of
virtual representation. This section supplements the common law
relating to the doctrine of virtual representation and shall not be
construed as limiting the application of that common law doctrine.
(((2))) (3) Any notice requirement in this title is satisfied if
((notice is given as follows)):
(a) Where an interest in an estate, trust, or nonprobate asset or
an interest that may be affected by a power of attorney has been given
to persons who comprise a certain class upon the happening of a certain
event, notice may be given to the living persons who would constitute
the class if the event had happened immediately before the commencement
of the proceeding requiring notice, and the persons shall virtually
represent all other members of the class;
(b) Where an interest in an estate, trust, or nonprobate asset or
an interest that may be affected by a power of attorney has been given
to a living person, and the same interest, or a share in it, is to pass
to the surviving spouse or surviving domestic partner or to persons who
are, or might be, the distributees, heirs, issue, or other kindred of
that living person upon the happening of a future event, notice may be
given to that living person, and the living person shall virtually
represent the surviving spouse or surviving domestic partner,
distributees, heirs, issue, or other kindred of the person; ((and))
(c) Except as otherwise provided in this subsection, where an
interest in an estate, trust, or nonprobate asset or an interest that
may be affected by a power of attorney has been given to a person or a
class of persons, or both, upon the happening of any future event, and
the same interest or a share of the interest is to pass to another
person or class of persons, or both, upon the happening of an
additional future event, notice may be given to the living person or
persons who would take the interest upon the happening of the first
event, and the living person or persons shall virtually represent the
persons and classes of persons who might take on the happening of the
additional future event((.)); and
(3) A party is not virtually represented by a person receiving
notice if a conflict of interest involving the matter is known to exist
between the notified person and the party.
(4)
(d) The holder of a general power of appointment, exercisable
either during the power holder's life or by will, or a limited power of
appointment, exercisable either during the power holder's life or by
will, that excludes as possible appointees only the power holder, his
or her estate, his or her creditors, and the creditors of his or her
estate, may accept notice and virtually represent and bind persons
whose interests, as permissible appointees, takers in default, or
otherwise, are subject to the power, to the extent there is no conflict
of interest between the holder of the power of appointment and the
persons represented with respect to the particular question or dispute.
(4) A party is not virtually represented by a person receiving
notice if a conflict of interest involving the matter is known to exist
between the notified person and the party.
(5) An action taken by the court is conclusive and binding upon
each person receiving actual or constructive notice or who is otherwise
((virtually)) represented under this section.
NEW SECTION. Sec. 10 A new section is added to chapter 11.96A
RCW to read as follows:
(1) Except as otherwise provided in subsection (2) of this section,
with respect to any charitable disposition made in a will or trust, if
a particular charitable purpose becomes unlawful, impracticable,
impossible to achieve, or wasteful:
(a) The disposition does not fail, in whole or in part;
(b) The subject property does not revert to the alternative,
residuary, or intestate heirs of the estate or, in the case of a trust,
the trustor or the trustor's successors in interest; and
(c) The court may modify or terminate the trust by directing that
the property be applied or distributed, in whole or in part, in a
manner consistent with the testator's or trustor's charitable purposes.
(2) A provision in the terms of a will or charitable trust that
would result in distribution of the property to a noncharitable
beneficiary prevails over the power of the court under subsection (1)
of this section to modify or terminate the will provision or trust only
if, when the provision takes effect:
(a) The property is to revert to the trustor and the trustor is
still living; or
(b) Fewer than twenty-one years have elapsed since the following:
(i) In the case of a charitable disposition in trust, the date of
the trust's creation or the date the trust became irrevocable; or
(ii) In the case of a charitable disposition in a will, the death
of the testator, in the case of a charitable disposition in a will.
(3) For purposes of this title, a charitable purpose is one for the
relief of poverty, the advancement of education or religion, the
promotion of health, governmental or municipal purposes, or other
purposes the achievement of which is beneficial to a community.
NEW SECTION. Sec. 11 A new section is added to chapter 11.96A
RCW to read as follows:
The terms of a will or trust, even if unambiguous, may be reformed
by judicial proceedings or binding nonjudicial procedure under this
chapter to conform the terms to the intention of the testator or
trustor if it is proved by clear, cogent, and convincing evidence, or
the parties to a binding nonjudicial agreement agree that there is
clear, cogent, and convincing evidence, that both the intent of the
testator or trustor and the terms of the will or trust were affected by
a mistake of fact or law, whether in expression or inducement.
Sec. 12 RCW 11.97.010 and 2003 c 254 s 4 are each amended to read
as follows:
(1) The trustor of a trust may by the provisions of the trust
relieve the trustee from any or all of the duties, restrictions, and
liabilities which would otherwise be imposed by chapters 11.95, 11.98,
11.100, and 11.104A RCW and RCW 11.106.020, or may alter or deny any or
all of the privileges and powers conferred by those provisions; or may
add duties, restrictions, liabilities, privileges, or powers to those
imposed or granted by those provisions. If any specific provision of
those chapters is in conflict with the provisions of a trust, the
provisions of the trust control whether or not specific reference is
made in the trust to any of those chapters, except as provided in RCW
6.32.250, 11.96A.190, 19.36.020, 11.98.200 through 11.98.240 ((and)),
11.95.100 through 11.95.150, and chapter 11.--- RCW (the new chapter
created in section 39 of this act). In no event may a trustee be
relieved of the duty to act in good faith and with honest judgment or
the duty to provide information to beneficiaries as required in this
section. Notwithstanding the breadth of discretion granted to a
trustee in the terms of the trust, including the use of such terms as
"absolute," "sole," or "uncontrolled," the trustee shall exercise a
discretionary power in good faith and in accordance with the terms and
purposes of the trust and the interests of the beneficiaries.
(2) Within sixty days after the date of acceptance of the position
of trustee of an irrevocable trust, or the date the trustee of a
formerly revocable trust acquires knowledge that the trust has become
irrevocable, whether by the death of the trustor or otherwise, the
trustee shall give notice of: (a) The existence of the trust, (b) the
identity of the trustor or trustors, (c) the trustee's name, address,
and telephone number, and (d) the right to request such information as
is reasonably necessary to enable the notified person to enforce his or
her rights under the trust, to all persons interested in the trust, as
defined in RCW 11.96A.030, and who would be entitled to notice under
RCW 11.96A.110 and 11.96A.120 if they were a party to judicial
proceedings regarding the trust. If any such person is a minor and no
guardian has been appointed for such person by any court, then such
notice may be given to a parent of the person. If a person otherwise
entitled to notice under this section is a charitable organization, and
the charitable organization's only interest in the trust is a future
interest that may be revoked, then such notice shall instead be given
to the attorney general. A trustee who gives notice pursuant to this
section satisfies the duty to inform the beneficiaries of the existence
of the trust. The notice required under this subsection (2) applies
only to irrevocable trusts created after December 31, 2011, and
revocable trusts that become irrevocable after December 31, 2011,
provided that all common law duties of a trustee to notify
beneficiaries applicable to trusts created or that became irrevocable
before such date are not affected.
(3) A trustee shall keep all persons interested in the trust, as
defined in RCW 11.96A.030, and who would be entitled to notice under
RCW 11.96A.110 and 11.96A.120 if they were a party to judicial
proceedings regarding the trust, reasonably informed about the
administration of the trust and of the material facts necessary for
them to protect their interests. A report that contains the following
is presumed to satisfy the trustee's duty to keep such persons
reasonably informed for the relevant period of trust administration:
(a) A statement of receipts and disbursements of principal and
income that have occurred during the accounting period;
(b) A statement of the assets and liabilities of the trust and
their values at the beginning and end of the period;
(c) The trustee's compensation for the period;
(d) The agents hired by the trustee, their relationship to the
trustee, if any, and their compensation, for the period;
(e) Disclosure of any pledge, mortgage, option, or lease of trust
property, or other agreement affecting trust property binding for a
period of five years or more that was granted or entered into during
the accounting period;
(f) Disclosure of all transactions during the period that are
equivalent to one of the types of transactions described in section 32
of this act or otherwise could have been affected by a conflict between
the trustee's fiduciary and personal interests;
(g) A statement that the recipient of the account information may
petition the superior court pursuant to chapter 11.106 RCW to obtain
review of the statement and of acts of the trustee disclosed in the
statement; and
(h) A statement that claims against the trustee for breach of trust
may not be made after the expiration of three years from the date the
beneficiary receives the statement.
(4) Unless unreasonable under the circumstances, a trustee shall
promptly respond to any beneficiary's request for information related
to the administration of the trust.
(5) If a person entitled to notice under this section requests
information reasonably necessary to enable the notified person to
enforce his or her rights under the trust, then the trustee must
provide such information within sixty days of receipt of such request.
Delivery of the entire trust instrument to the persons entitled to
notice under this section who request information concerning the terms
of the trust reasonably necessary to enable the notified person to
enforce his or her rights under the trust is deemed to satisfy the
trustee's obligations under this subsection.
NEW SECTION. Sec. 13 A new section is added to chapter 11.97 RCW
to read as follows:
The rules of construction that apply in this state to the
interpretation of a will and disposition of property by will also apply
as appropriate to the interpretation of the terms of a trust and the
disposition of the trust property.
Sec. 14 RCW 11.98.009 and 1985 c 30 s 40 are each amended to read
as follows:
Except as provided in this section, this chapter applies to express
trusts executed by the trustor after June 10, 1959, and does not apply
to resulting trusts, constructive trusts, business trusts where
certificates of beneficial interest are issued to the beneficiary,
investment trusts, voting trusts, trusts in the nature of mortgages or
pledges, ((trusts created by the judgment or decree of a court not
sitting in probate,)) liquidation trusts, or trusts for the sole
purpose of paying dividends, interest, interest coupons, salaries,
wages, pensions or profits, trusts created in deposits in any financial
institution pursuant to chapter 30.22 RCW, unless any such trust which
is created in writing incorporates this chapter in whole or in part.
NEW SECTION. Sec. 15 A new section is added to chapter 11.98 RCW
to read as follows:
(1) Transfer of property to another person as trustee during the
trustor's lifetime or by will or other disposition taking effect upon
the trustor's death;
(2) Declaration by the owner of property that the owner holds
identifiable property as trustee; or
(3) Exercise of a power of appointment in favor of a trustee.
NEW SECTION. Sec. 16 A new section is added to chapter 11.98 RCW
to read as follows:
(a) The trustor has capacity to create a trust;
(b) The trustor indicates an intention to create the trust;
(c) The trust has a definite beneficiary or is:
(i) A charitable trust;
(ii) A trust for the care of an animal, as provided in chapter
11.118 RCW; or
(iii) A trust for a noncharitable purpose, as provided in section
20 of this act;
(d) The trustee has duties to perform; and
(e) The same person is not the sole trustee and sole beneficiary.
(2) A beneficiary is definite if the beneficiary can be ascertained
now or in the future, subject to any applicable rule against
perpetuities.
(3) A power in a trustee to select a beneficiary from an indefinite
class is valid, except to the extent that the trustee may distribute
trust property to himself or herself. If the power is not exercised
within a reasonable time, the power fails and the property subject to
the power passes to the persons who would have taken the property had
the power not been conferred.
NEW SECTION. Sec. 17 A new section is added to chapter 11.98 RCW
to read as follows:
(1) The trustor was domiciled, had a residence, or was a national;
(2) The trustee was domiciled or had a place of business; or
(3) Any trust property was located.
NEW SECTION. Sec. 18 A new section is added to chapter 11.98 RCW
to read as follows:
NEW SECTION. Sec. 19 A new section is added to chapter 11.98 RCW
to read as follows:
NEW SECTION. Sec. 20 A new section is added to chapter 11.98 RCW
to read as follows:
(1) A trust may be created for a noncharitable purpose without a
definite or definitely ascertainable beneficiary or for a noncharitable
but otherwise valid purpose to be selected by the trustee. The trust
may not be enforced for longer than the time period specified in RCW
11.98.130 as the period during which a trust cannot be deemed to
violate the rule against perpetuities;
(2) A trust authorized by this section may be enforced by a person
appointed in the terms of the trust or, if no person is so appointed,
by a person appointed by the court; and
(3) Property of a trust authorized by this section may be applied
only to its intended use, except to the extent the court determines
that the value of the trust property exceeds the amount required for
the intended use. Except as otherwise provided in the terms of the
trust, property not required for the intended use must be distributed
to the trustor, if then living, otherwise to the trustor's successors
in interest. Successors in interest include the beneficiaries under
the trustor's will, if the trustor has a will, or, in the absence of an
effective will provision, the trustor's heirs.
Sec. 21 RCW 11.98.039 and 2005 c 97 s 13 are each amended to read
as follows:
(1) Where a vacancy occurs in the office of the trustee and there
is a successor trustee who is willing to serve as trustee and (a) is
named in the governing instrument as successor trustee or (b) has been
selected to serve as successor trustee under the procedure established
in the governing instrument for the selection of a successor trustee,
the outgoing trustee, or any other interested party, shall give notice
of such vacancy, whether arising because of the trustee's resignation
or because of any other reason, and of the successor trustee's
agreement to serve as trustee, to each adult distributee or permissible
distributee of trust income or of trust principal or of both trust
income and trust principal. If there are no such adults, no notice
need be given. The successor trustee named in the governing instrument
or selected pursuant to the procedure therefor established in the
governing instrument shall be entitled to act as trustee except for
good cause or disqualification. The successor trustee shall serve as
of the effective date of the discharge of the predecessor trustee as
provided in RCW 11.98.041.
(2) Where a vacancy exists or occurs in the office of the trustee
and there is no successor trustee who is named in the governing
instrument or who has been selected to serve as successor trustee under
the procedure established in the governing instrument for the selection
of a successor trustee, and who is willing to serve as trustee, then
all parties with an interest in the trust may agree to a nonjudicial
change of the trustee under RCW 11.96A.220. The successor trustee
shall serve as of the effective date of the discharge of the
predecessor trustee as provided in RCW 11.98.041 or, in circumstances
where there is no predecessor trustee, as of the effective date of the
trustee's appointment.
(3) When there is a desire to name one or more cotrustees to serve
with the existing trustee, then all parties with an interest in the
trust may agree to the nonjudicial addition of one or more cotrustees
under RCW 11.96A.220. The additional cotrustee shall serve as of the
effective date of the cotrustee's appointment.
(4) Unless subsection (1), (2), or (3) of this section applies, any
beneficiary of a trust, the trustor, if alive, or the trustee may
petition the superior court having jurisdiction for the appointment or
change of a trustee or cotrustee under the procedures provided in RCW
11.96A.080 through 11.96A.200: (a) Whenever the office of trustee
becomes vacant; (b) upon filing of a petition of resignation by a
trustee; or (c) for any other reasonable cause.
(5) For purposes of this subsection, the term fiduciary includes
both trustee and personal representative.
(a) Except as otherwise provided in the governing instrument, a
successor fiduciary, absent actual knowledge of a breach of fiduciary
duty: (i) Is not liable for any act or omission of a predecessor
fiduciary and is not obligated to inquire into the validity or
propriety of any such act or omission; (ii) is authorized to accept as
conclusively accurate any accounting or statement of assets tendered to
the successor fiduciary by a predecessor fiduciary; and (iii) is
authorized to receipt only for assets actually delivered and has no
duty to make further inquiry as to undisclosed assets of the trust or
estate.
(b) Nothing in this section relieves a successor fiduciary from
liability for retaining improper investments, nor does this section in
any way bar the successor fiduciary, trust beneficiaries, or other
party in interest from bringing an action against a predecessor
fiduciary arising out of the acts or omissions of the predecessor
fiduciary, nor does it relieve the successor fiduciary of liability for
its own acts or omissions except as specifically stated or authorized
in this section.
(6) A change of trustee to a foreign trustee does not change the
situs of the trust. Transfer of situs of a trust to another
jurisdiction requires compliance with section 22 of this act and RCW
11.98.045 through 11.98.055.
NEW SECTION. Sec. 22 A new section is added to chapter 11.98 RCW
to read as follows:
(a) A trustee has a place of business in or a trustee is a resident
of Washington; or
(b) More than an insignificant part of the trust administration
occurs in Washington; or
(c) The trustor resides in Washington at the time situs is being
established, or resided in Washington at the time the trust became
irrevocable; or
(d) One or more of the beneficiaries resides in Washington; or
(e) An interest in real property located in Washington is an asset
of the trust.
(2)(a) Unless the trust instrument designates a state other than
Washington as the situs of the trust and does not expressly authorize
transfer of situs, the trustee may register the trust as a Washington
trust if any of the factors in subsection (1)(a) through (e) of this
section are present. The trustee shall register the trust by filing
with the clerk of the court in any county where venue lies for the
trust under RCW 11.96A.050, a statement including the following
information:
(i) The name and address of the trustee;
(ii) The date of the trust, name of the trustor, and name of the
trust, if any;
(iii) The factor or factors listed in subsection (1)(a) through (e)
of this section that are present for the trust and which qualify the
trust for registration.
(b) Within five days of filing the registration with the court, the
trustee shall mail a copy of the registration to each person who would
be entitled to notice under RCW 11.97.010 and has not waived notice of
the registration, in writing, filed in the cause, together with a
notice that must be in substantially the same form as set forth in this
section. Persons receiving such notice shall have thirty days from the
date of filing the registration to file a petition in the court
objecting to such registration and requesting the court to issue an
order that Washington is not the proper situs of the trust, and to
serve a copy of such petition upon the trustee or the trustee's lawyer.
If a petition objecting to the registration is filed within thirty days
of the date of filing the registration, the trustee must request the
court to fix a time and place for the hearing of the petition and
notify by mail, personal service or electronic transmission, if a valid
consent to electronic transmission is in effect under the terms of RCW
11.96A.110, all persons who were entitled to notice of the registration
of the time and place of the hearing, not less than ten days before the
hearing on the petition.
(c) Unless a person receiving notice of the registration files a
petition with the court objecting to the registration within thirty
days of the date of filing the registration, the registration shall be
deemed the equivalent of an order entered by the court declaring that
the situs of the trust is Washington. After expiration of the
thirty-day period following filing of the registration, the trustee may
obtain a certificate of registration signed by the clerk, and issued
under the seal of the court, which may be in the form specified in (d)
of this subsection.
(d) Notice of registration and certificates of registration may be
in the following form:
(i) Notice form:
NOTICE OF FILING OF REGISTRATION OF [NAME AND DATE OF TRUST] AS A
WASHINGTON TRUST
NOTICE IS GIVEN that the attached Registration of Trust was filed
by the undersigned in the above-entitled court on the . . . . day of
. . . . . ., 20. . .; unless you file a petition in the above-entitled
court objecting to such registration and requesting the court to issue
an order that Washington is not the proper situs of the trust, and
serve a copy thereof upon the trustee or the trustee's lawyer, within
thirty days after the date of the filing, the registration will be
deemed the equivalent of an order entered by the court declaring that
the situs of the trust is Washington.
If you file and serve a petition within the period specified, the
undersigned will request the court to fix a time and place for the
hearing of your petition, and you will be notified of the time and
place thereof, by mail, or personal service, not less than ten days
before the hearing on the petition.
(ii) Certificate of Registration:
State of Washington, County of . . . . . .
In the superior court of the county of . . . . . .
Whereas, the attached Registration of Trust was filed with this
court on . . . ., the attached Notice of Filing Registration of Trust
and Affidavit of Mailing Notice of Filing Registration of Trust were
filed with this court on . . . ., and no objections to such
Registration have been filed with this court, the trust known as
. . . ., under trust agreement dated . . . ., between . . . . as
Trustor and . . . . as Trustee, is hereby registered as a Washington
trust.
Witness my hand and the seal of said court this . . . day of
. . . . . ., 20 . . ..
(3) If the instrument establishing a trust does not designate
Washington as the situs or designate Washington law to apply to the
trust, and the trustee of the trust has not registered the trust as
allowed in subsection (2) of this section, the situs of the trust is
Washington if the conditions specified in this subsection (3) are met.
(a) For a testamentary trust, the situs of the trust is Washington
if:
(i) The will was admitted to probate in Washington; or
(ii) The will has not been admitted to probate in Washington, but
any trustee of the trust resides or has a place of business in
Washington, any beneficiary entitled to notice under RCW 11.97.010
resides in Washington, or any real property that is an asset of the
trust is located in Washington.
(b) For an intervivos trust where the trustor is domiciled in
Washington either when the trust becomes irrevocable or, in the case of
a revocable trust, when judicial proceedings under chapter 11.96A RCW
are commenced, the situs of the trust is Washington if:
(i) The trustor is living and Washington is the trustor's domicile
or any of the trustees reside in or have a place of business in
Washington; or
(ii) The trustor is deceased, situs has not previously been
established by any court proceeding, and:
(A) The trustor's will was admitted to probate in Washington;
(B) The trustor's will was not admitted to probate in Washington,
but any person entitled to notice under RCW 11.97.010 resides in
Washington, any trustee resides or has a place of business in
Washington, or any real property that is an asset of the trust is
located in Washington.
(c) If the situs of the trust is not determined under (a) or (b) of
this subsection, the determination regarding the situs of the trust is
a matter for purposes of RCW 11.96A.030. Whether Washington is the
situs shall be determined by a court in a judicial proceeding conducted
under RCW 11.96A.080 if:
(i) A trustee has a place of business in or a trustee is a resident
of Washington; or
(ii) More than an insignificant part of the trust administration
occurs in Washington; or
(iii) One or more of the beneficiaries resides in Washington; or
(iv) An interest in real property located in Washington is an asset
of the trust.
(d) Determination of situs under (c) of this subsection (3) cannot
be made by nonjudicial agreement under RCW 11.96A.220.
Sec. 23 RCW 11.98.045 and 1985 c 30 s 45 are each amended to read
as follows:
(1) ((A trustee may transfer trust assets to a trustee in another
jurisdiction or may transfer the place of administration of a trust to
another jurisdiction)) If a trust is a Washington trust under section
22 of this act, a trustee may transfer the situs of the trust to a
jurisdiction other than Washington if the trust instrument so provides
or in accordance with RCW 11.98.051 or 11.98.055.
(2) Transfer under this section is permitted only if:
(a) The transfer would facilitate the economic and convenient
administration of the trust;
(b) The transfer would not materially impair the interests of the
beneficiaries or others interested in the trust;
(c) The transfer does not violate the terms of the trust; ((and))
(d) The new trustee is qualified and able to administer the trust
or such assets on the terms set forth in the trust; and
(e) The trust meets at least one condition for situs listed in
section 22(1) of this act with respect to the new jurisdiction.
(3) Acceptance of such transfer by a foreign corporate trustee or
trust company under this section((,)) or RCW 11.98.051((,)) or
11.98.055 shall not be construed to be doing a "trust business" as
described in RCW 30.08.150(9).
Sec. 24 RCW 11.98.051 and 1999 c 42 s 619 are each amended to
read as follows:
(1) The trustee may transfer ((trust assets or the place of
administration)) trust situs (a) in accordance with RCW 11.96A.220((.
In addition, the trustee shall give)); or (b) by giving written notice
to those persons entitled to notice as provided for under RCW
11.96A.110 and to the attorney general in the case of a charitable
trust subject to chapter 11.110 RCW not less than sixty days before
initiating the transfer. The notice ((shall)) must:
(a) State the name and mailing address of the trustee;
(b) Include a copy of the governing instrument of the trust;
(c) Include a statement of assets and liabilities of the trust
dated within ninety days of the notice;
(d) State the name and mailing address of the trustee to whom the
((assets or administration)) trust will be transferred together with
evidence that the trustee has agreed to accept the ((assets or)) trust
((administration)) in the manner provided by law of the new ((place of
administration)) situs. The notice ((shall)) must also contain a
statement of the trustee's qualifications and the name of the court, if
any, having jurisdiction of that trustee or in which a proceeding with
respect to the administration of the trust may be heard;
(e) State the facts supporting the requirements of RCW
11.98.045(2);
(f) Advise the beneficiaries of the ((right to petition for
judicial determination of the proposed transfer as provided in RCW
11.98.055)) date, not less than sixty days after the giving of the
notice, by which the beneficiary must notify the trustee of an
objection to the proposed transfer; and
(g) Include a form on which the recipient may indicate consent or
objection to the proposed transfer.
(2) If the ((trustee receives written consent to the proposed
transfer from all persons entitled to notice)) date upon which the
beneficiaries' right to object to the transfer expires without receipt
by the trustee of any objection, the trustee may transfer the trust
((assets or place of administration)) situs as provided in the notice.
((Transfer in accordance with the notice is a full discharge of the
trustee's duties in relation to all property referred to therein. Any
person dealing with the trustee is entitled to rely on the authority of
the trustee to act and is not obliged to inquire into the validity or
propriety of the transfer.)) If the trust was registered under RCW
11.98.045(2), the trustee must file a notice of transfer of situs and
termination of registration with the court of the county where the
trust was registered.
(3) The authority of a trustee under this section to transfer a
trust's situs terminates if a beneficiary notifies the trustee of an
objection to the proposed transfer on or before the date specified in
the notice.
(4) A change of trust situs does not authorize a change of trustee.
Change of trustee of a trust requires compliance with RCW 11.98.039.
Sec. 25 RCW 11.98.055 and 1999 c 42 s 620 are each amended to
read as follows:
(1) Any trustee, beneficiary, or beneficiary representative may
petition the superior court of the county of the situs of the trust for
a transfer of ((trust assets or transfer of the place of
administration)) the situs of a trust in accordance with RCW 11.96A.080
through 11.96A.200.
(2) At the conclusion of the hearing, if the court finds the
requirements of RCW 11.98.045(2) have been satisfied, it may direct the
transfer of ((trust assets or the place of trust administration)) the
situs of a trust on such terms and conditions as it deems appropriate.
The court in its discretion may provide for payment from the trust of
reasonable fees and expenses for any party to the proceeding. Delivery
of trust assets in accordance with the court's order is a full
discharge of the trustee's duties in relation to all transferred
property.
(3) A change of trust situs does not authorize a change of trustee.
Change of trustee of a trust requires compliance with RCW 11.98.039.
Sec. 26 RCW 11.98.070 and 2010 c 8 s 2091 are each amended to
read as follows:
A trustee, or the trustees jointly, of a trust, in addition to the
authority otherwise given by law, have discretionary power to acquire,
invest, reinvest, exchange, sell, convey, control, divide, partition,
and manage the trust property in accordance with the standards provided
by law, and in so doing may:
(1) Receive property from any source as additions to the trust or
any fund of the trust to be held and administered under the provisions
of the trust;
(2) Sell on credit;
(3) Grant, purchase or exercise options;
(4) Sell or exercise subscriptions to stock or other corporate
securities and to exercise conversion rights;
(5) Deposit stock or other corporate securities with any protective
or other similar committee;
(6) Assent to corporate sales, leases, and encumbrances;
(7) Vote trust securities in person or by proxy with power of
substitution; and enter into voting trusts;
(8) Register and hold any stocks, securities, or other property in
the name of a nominee or nominees without mention of the trust
relationship, provided the trustee or trustees are liable for any loss
occasioned by the acts of any nominee, except that this subsection
shall not apply to situations covered by subsection (31) of this
section;
(9) Grant leases of trust property, with or without options to
purchase or renew, to begin within a reasonable period and for terms
within or extending beyond the duration of the trust, for any purpose
including exploration for and removal of oil, gas and other minerals;
enter into community oil leases, pooling and unitization agreements;
(10) Subdivide, develop, dedicate to public use, make or obtain the
vacation of public plats, adjust boundaries, partition real property,
and on exchange or partition to adjust differences in valuation by
giving or receiving money or money's worth;
(11) Compromise or submit claims to arbitration;
(12) Borrow money, secured or unsecured, from any source, including
a corporate trustee's banking department, or from the individual
trustee's own funds;
(13) Make loans, either secured or unsecured, at such interest as
the trustee may determine to any person, including any beneficiary of
a trust, except that no trustee who is a beneficiary of a trust may
participate in decisions regarding loans to such beneficiary from the
trust((, unless the loan is as described in RCW 83.110.020(2),)) and
then only to the extent of the loan, and also except that if a
beneficiary or the grantor of a trust has the power to change a trustee
of the trust, the power to loan shall be limited to loans at a
reasonable rate of interest and for adequate security;
(14) Determine the hazards to be insured against and maintain
insurance for them;
(15) Select any part of the trust estate in satisfaction of any
partition or distribution, in kind, in money or both; make nonpro rata
distributions of property in kind; allocate particular assets or
portions of them or undivided interests in them to any one or more of
the beneficiaries without regard to the income tax basis of specific
property allocated to any beneficiary and without any obligation to
make an equitable adjustment;
(16)(a) Pay ((any income or principal distributable to or for the
use of any beneficiary, whether that beneficiary is under legal
disability, to the beneficiary or for the beneficiary's use to the
beneficiary's parent, guardian, custodian under the uniform gifts to
minors act of any state, person with whom he or she resides, or third
person)) an amount distributable to a beneficiary who is under a legal
disability or who the trustee reasonably believes is incapacitated, by
paying it directly to the beneficiary or applying it for the
beneficiary's benefit, or by:
(i) Paying it to the beneficiary's guardian;
(ii) Paying it to the beneficiary's custodian under chapter 11.114
RCW, and, for that purpose, creating a custodianship;
(iii) If the trustee does not know of a guardian or custodian,
paying it to an adult relative or other person having legal or physical
care or custody of the beneficiary, with instructions to expend the
funds on the beneficiary's behalf; or
(iv) Managing it as a separate fund on the beneficiary's behalf,
subject to the beneficiary's continuing right to withdraw the
distribution.
(b) If the trustee pays any amount to a third party under (a)(i)
through (iii) of this subsection, the trustee has no further
obligations regarding the amounts so paid;
(17) Change the character of or abandon a trust asset or any
interest in it;
(18) Mortgage, pledge the assets or the credit of the trust estate,
or otherwise encumber trust property, including future income, whether
an initial encumbrance or a renewal or extension of it, for a term
within or extending beyond the term of the trust, in connection with
the exercise of any power vested in the trustee;
(19) Make ordinary or extraordinary repairs or alterations in
buildings or other trust property, demolish any improvements, raze
existing structures, and make any improvements to trust property;
(20) Create restrictions, easements, including easements to public
use without consideration, and other servitudes;
(21) Manage any business interest, including any farm or ranch
interest, regardless of form, received by the trustee from the trustor
of the trust, as a result of the death of a person, or by gratuitous
transfer from any other transferor, and with respect to the business
interest, have the following powers:
(a) To hold, retain, and continue to operate that business interest
solely at the risk of the trust, without need to diversify and without
liability on the part of the trustee for any resulting losses;
(b) To enlarge or diminish the scope or nature or the activities of
any business;
(c) To authorize the participation and contribution by the business
to any employee benefit plan, whether or not qualified as being tax
deductible, as may be desirable from time to time;
(d) To use the general assets of the trust for the purpose of the
business and to invest additional capital in or make loans to such
business;
(e) To endorse or guarantee on behalf of the trust any loan made to
the business and to secure the loan by the trust's interest in the
business or any other property of the trust;
(f) To leave to the discretion of the trustee the manner and degree
of the trustee's active participation in the management of the
business, and the trustee is authorized to delegate all or any part of
the trustee's power to supervise, manage, or operate to such persons as
the trustee may select, including any partner, associate, director,
officer, or employee of the business; and also including electing or
employing directors, officers, or employees of the trustee to take part
in the management of the business as directors or officers or
otherwise, and to pay that person reasonable compensation for services
without regard to the fees payable to the trustee;
(g) To engage, compensate, and discharge or to vote for the
engaging, compensating, and discharging of managers, employees, agents,
lawyers, accountants, consultants, or other representatives, including
anyone who may be a beneficiary of the trust or any trustee;
(h) To cause or agree that surplus be accumulated or that dividends
be paid;
(i) To accept as correct financial or other statements rendered by
any accountant for any sole proprietorship or by any partnership or
corporation as to matters pertaining to the business except upon actual
notice to the contrary;
(j) To treat the business as an entity separate from the trust, and
in any accounting by the trustee it is sufficient if the trustee
reports the earning and condition of the business in a manner
conforming to standard business accounting practice;
(k) To exercise with respect to the retention, continuance, or
disposition of any such business all the rights and powers that the
trustor of the trust would have if alive at the time of the exercise,
including all powers as are conferred on the trustee by law or as are
necessary to enable the trustee to administer the trust in accordance
with the instrument governing the trust, subject to any limitations
provided for in the instrument; and
(l) To satisfy contractual and tort liabilities arising out of an
unincorporated business, including any partnership, first out of the
business and second out of the estate or trust, but in no event may
there be a liability of the trustee, except as provided in RCW
11.98.110 (2) and (4), and if the trustee is liable, the trustee is
entitled to indemnification from the business and the trust,
respectively;
(22) Participate in the establishment of, and thereafter in the
operation of, any business or other enterprise according to subsection
(21) of this section except that the trustee shall not be relieved of
the duty to diversify;
(23) Cause or participate in, directly or indirectly, the
formation, reorganization, merger, consolidation, dissolution, or other
change in the form of any corporate or other business undertaking where
trust property may be affected and retain any property received
pursuant to the change;
(24) Limit participation in the management of any partnership and
act as a limited or general partner;
(25) Charge profits and losses of any business operation, including
farm or ranch operation, to the trust estate as a whole and not to the
trustee; make available to or invest in any business or farm operation
additional moneys from the trust estate or other sources;
(26) Pay reasonable compensation to the trustee or co-trustees
considering all circumstances including the time, effort, skill, and
responsibility involved in the performance of services by the trustee
and reimburse the trustee, with interest as appropriate, for expenses
that were properly incurred in the administration of the trust;
(27) Employ persons, including lawyers, accountants, investment
advisors, or agents, even if they are associated with the trustee, to
advise or assist the trustee in the performance of the trustee's duties
or to perform any act, regardless of whether the act is discretionary,
and to act without independent investigation upon their
recommendations, except that:
(a) A trustee may not delegate all of the trustee's duties and
responsibilities;
(b) This power to employ and to delegate duties does not relieve
the trustee of liability for such person's discretionary acts, that, if
done by the trustee, would result in liability to the trustee;
(c) This power to employ and to delegate duties does not relieve
the trustee of the duty to select and retain a person with reasonable
care;
(d) The trustee, or a successor trustee, may sue the person to
collect any damages suffered by the trust estate even though the
trustee might not be personally liable for those damages, subject to
the statutes of limitation that would have applied had the claim been
one against the trustee who was serving when the act or failure to act
occurred;
(28) Appoint an ancillary trustee or agent to facilitate management
of assets located in another state or foreign country;
(29) Retain and store such items of tangible personal property as
the trustee selects and pay reasonable storage charges thereon from the
trust estate;
(30) Issue proxies to any adult beneficiary of a trust for the
purpose of voting stock of a corporation acting as the trustee of the
trust;
(31) Place all or any part of the securities at any time held by
the trustee in the care and custody of any bank, trust company, or
member firm of the New York Stock Exchange with no obligation while the
securities are so deposited to inspect or verify the same and with no
responsibility for any loss or misapplication by the bank, trust
company, or firm, so long as the bank, trust company, or firm was
selected and retained with reasonable care, and have all stocks and
registered securities placed in the name of the bank, trust company, or
firm, or in the name of its nominee, and to appoint such bank, trust
company, or firm agent as attorney to collect, receive, receipt for,
and disburse any income, and generally may perform, but is under no
requirement to perform, the duties and services incident to a so-called
"custodian" account;
(32) Determine at any time that the corpus of any trust is
insufficient to implement the intent of the trust, and upon this
determination by the trustee, terminate the trust by distribution of
the trust to the current income beneficiary or beneficiaries of the
trust or their legal representatives, except that this determination
may only be made by the trustee if the trustee is neither the grantor
nor the beneficiary of the trust, and if the trust has no charitable
beneficiary;
(33) Continue to be a party to any existing voting trust agreement
or enter into any new voting trust agreement or renew an existing
voting trust agreement with respect to any assets contained in trust;
((and))
(34)(a) Donate a qualified conservation easement, as defined by
((section)) 26 U.S.C. Sec. 2031(c) of the federal internal revenue
code, on any real property, or consent to the donation of a qualified
conservation easement on any real property by a personal representative
of an estate of which the trustee is a devisee, to obtain the benefit
of the estate tax exclusion allowed under ((section)) 26 U.S.C. Sec.
2031(c) of the federal internal revenue code or the deduction allowed
under ((section)) 26 U.S.C. Sec. 2055(f) of the federal internal
revenue code as long as:
(i)(A) The governing instrument authorizes the donation of a
qualified conservation easement on the real property; or
(B) Each beneficiary that may be affected by the qualified
conservation easement consents to the donation under the provisions of
chapter 11.96A RCW; and
(ii) The donation of a qualified conservation easement will not
result in the insolvency of the decedent's estate.
(b) The authority granted under this subsection includes the
authority to amend a previously donated qualified conservation
easement, as defined under ((section)) 26 U.S.C. Sec. 2031(c)(8)(B) of
the federal internal revenue code, and to amend a previously donated
unqualified conservation easement for the purpose of making the
easement a qualified conservation easement under ((section)) 26 U.S.C.
Sec. 2031(c)(8)(B);
(35) Pay or contest any claim, settle a claim by or against the
trust, and release, in whole or in part, a claim belonging to the
trust;
(36) Exercise elections with respect to federal, state, and local
taxes;
(37) Prosecute or defend an action, claim, or judicial proceeding
in any jurisdiction to protect trust property and the trustee in the
performance of the trustee's duties;
(38) On termination of the trust, exercise the powers appropriate
to wind up the administration of the trust and distribute the trust
property to the persons entitled to it; and
(39) Select a mode of payment under any employee benefit or
retirement plan, annuity, or life insurance payable to the trustee,
exercise rights thereunder, including exercise of the right to
indemnification for expenses and against liabilities, and take
appropriate action to collect the proceeds.
NEW SECTION. Sec. 27 A new section is added to chapter 11.98 RCW
to read as follows:
(2) Upon the occurrence of an event terminating or partially
terminating a trust, the trustee shall proceed expeditiously to
distribute the trust property to the persons entitled to it, subject to
the right of the trustee to retain a reasonable reserve for the payment
of debts, expenses, and taxes.
NEW SECTION. Sec. 28 A new section is added to chapter 11.98 RCW
to read as follows:
(2) A person other than a beneficiary who in good faith deals with
a trustee is not required to inquire into the extent of the trustee's
powers or the propriety of their exercise.
(3) A person who in good faith delivers assets to a trustee need
not ensure their proper application.
(4) A person other than a beneficiary who in good faith assists a
former trustee, or who in good faith and for value deals with a former
trustee, without knowledge that the trusteeship has terminated is
protected from liability as if the former trustee were still a trustee.
(5) Comparable protective provisions of other laws relating to
commercial transactions or transfer of securities by fiduciaries
prevail over the protection provided by this section.
NEW SECTION. Sec. 29 A new section is added to chapter 11.98 RCW
to read as follows:
(2) An exculpatory term drafted or caused to be drafted by the
trustee is invalid as an abuse of a fiduciary or confidential
relationship unless the trustee proves that the exculpatory term is
fair under the circumstances and that its existence and contents were
adequately communicated to the trustor.
NEW SECTION. Sec. 30 A new section is added to chapter 11.98 RCW
to read as follows:
(1) The consent, release, or ratification of the beneficiary was
induced by improper conduct of the trustee; or
(2) At the time of the consent, release, or ratification, the
beneficiary did not know of the beneficiary's rights or of the material
facts relating to the breach.
NEW SECTION. Sec. 31 A new section is added to chapter 11.98 RCW
to read as follows:
(a) That the trust exists and the date the trust instrument was
executed;
(b) The identity of the trustor;
(c) The identity and address of the currently acting trustee;
(d) Relevant powers of the trustee;
(e) The revocability or irrevocability of the trust and the
identity of any person holding a power to revoke the trust;
(f) The authority of cotrustees to sign or otherwise authenticate
and whether all or less than all are required in order to exercise
powers of the trustee; and
(g) The name of the trust or the titling of the trust property.
(2) A certification of trust may be signed or otherwise
authenticated by any trustee or by an attorney for the trust.
(3) A certification of trust must state that the trust has not been
revoked, modified, or amended in any manner that would cause the
representations contained in the certification of trust to be
incorrect.
(4) A certification of trust need not contain the dispositive terms
of a trust.
(5) A recipient of a certification of trust may require the trustee
to furnish copies of those excerpts from the original trust instrument
and later amendments which designate the trustee and confer upon the
trustee the power to act in the pending transaction or any other
reasonable information.
(6) A person who acts in reliance upon a certification of trust
without knowledge that the representations contained therein are
incorrect is not liable to any person for so acting and may assume
without inquiry the existence of the facts contained in the
certification. Knowledge of the terms of the trust may not be inferred
solely from the fact that a copy of all or part of the trust instrument
is held by the person relying upon the certification.
(7) A person who in good faith enters into a transaction in
reliance upon a certification of trust may enforce the transaction
against the trust property as if the representations contained in the
certification were correct.
(8) A person making a demand for the trust instrument in addition
to a certification of trust or excerpts is liable for damages,
including reasonable attorney fees, if the court determines that the
person did not act in good faith in demanding the trust instrument.
(9) This section does not limit the right of a person to obtain a
copy of the trust instrument in a judicial proceeding concerning the
trust.
NEW SECTION. Sec. 32 A new section is added to chapter 11.98 RCW
to read as follows:
(2) Subject to the rights of persons dealing with or assisting the
trustee as provided in RCW 11.98.090, a sale, encumbrance, or other
transaction involving the investment or management of trust property
entered into by the trustee for the trustee's own personal account or
which is otherwise affected by a conflict between the trustee's
fiduciary and personal interests is voidable by a beneficiary affected
by the transaction unless:
(a) The transaction was authorized by the terms of the trust;
(b) The transaction was approved by the court or approved in a
nonjudicial binding agreement in compliance with RCW 11.96A.210 through
11.96A.250;
(c) The beneficiary did not commence a judicial proceeding within
the time allowed by RCW 11.96A.070;
(d) The beneficiary consented to the trustee's conduct, ratified
the transaction, or released the trustee in compliance with section 30
of this act; or
(e) The transaction involves a contract entered into or claim
acquired by the trustee before the person became or contemplated
becoming trustee.
(3)(a) A sale, encumbrance, or other transaction involving the
investment or management of trust property is presumed to be "otherwise
affected" by a conflict between fiduciary and personal interests under
this section if it is entered into by the trustee with:
(i) The trustee's spouse or registered domestic partner;
(ii) The trustee's descendants, siblings, parents, or their spouses
or registered domestic partners;
(iii) An agent or attorney of the trustee; or
(iv) A corporation or other person or enterprise in which the
trustee, or a person that owns a significant interest in the trustee,
has an interest that might affect the trustee's best judgment.
(b) The presumption is rebutted if the trustee establishes that the
conflict did not adversely affect the interests of the beneficiaries.
(4) A sale, encumbrance, or other transaction involving the
investment or management of trust property entered into by the trustee
for the trustee's own personal account that is voidable under
subsection (2) of this section may be voided by a beneficiary without
further proof.
(5) An investment by a trustee in securities of an investment
company or investment trust to which the trustee, or its affiliate,
provides services in a capacity other than as trustee is not presumed
to be affected by a conflict between personal and fiduciary interests
if the investment complies with the prudent investor rule of chapter
11.100 RCW. In addition to its compensation for acting as trustee, the
trustee may be compensated by the investment company or investment
trust for providing those services out of fees charged to the trust.
If the trustee receives compensation from the investment company or
investment trust for providing investment advisory or investment
management services, the trustee must at least annually notify the
persons entitled under RCW 11.106.020 to receive a copy of the
trustee's annual report of the rate and method by which that
compensation was determined.
(6) The following transactions, if fair to the beneficiaries,
cannot be voided under this section:
(a) An agreement between a trustee and a beneficiary relating to
the appointment or compensation of the trustee;
(b) Payment of reasonable compensation to the trustee and any
affiliate providing services to the trust, provided total compensation
is reasonable;
(c) A transaction between a trust and another trust, decedent's
estate, or guardianship of which the trustee is a fiduciary or in which
a beneficiary has an interest;
(d) A deposit of trust money in a regulated financial-service
institution operated by the trustee or its affiliate;
(e) A delegation and any transaction made pursuant to the
delegation from a trustee to an agent that is affiliated or associated
with the trustee; or
(f) Any loan from the trustee or its affiliate.
(7) The court may appoint a special fiduciary to make a decision
with respect to any proposed transaction that might violate this
section if entered into by the trustee.
(8) If a trust has two or more beneficiaries, the trustee shall act
impartially in administering the trust and distributing the trust
property, giving due regard to the beneficiaries' respective interests.
NEW SECTION. Sec. 33 A new section is added to chapter 11.98 RCW
to read as follows:
(a) The amount required to restore the value of the trust property
and trust distributions to what they would have been had the breach not
occurred; or
(b) The profit the trustee made by reason of the breach.
(2) Except as otherwise provided in this subsection, if more than
one trustee is liable to the beneficiaries for a breach of trust, a
trustee is entitled to contribution from the other trustee or trustees.
A trustee is not entitled to contribution if the trustee was
substantially more at fault than another trustee or if the trustee
committed the breach of trust in bad faith or with reckless
indifference to the purposes of the trust or the interests of the
beneficiaries. A trustee who received a benefit from the breach of
trust is not entitled to contribution from another trustee to the
extent of the benefit received.
Sec. 34 RCW 11.100.090 and 1985 c 30 s 75 are each amended to
read as follows:
Unless the instrument creating the trust expressly provides to the
contrary and except as authorized in section 32 of this act, any
fiduciary in carrying out the obligations of the trust, may not buy or
sell investments from or to himself, herself, or itself or any
affiliated or subsidiary company or association. This section shall
not be construed as prohibiting the trustee's powers under RCW
11.98.070(12).
NEW SECTION. Sec. 35
NEW SECTION. Sec. 36
(2) If a revocable trust is created or funded by more than one
trustor and unless the trust agreement provides otherwise:
(a) To the extent the trust consists of community property, the
trust may be revoked by either spouse or either domestic partner acting
alone but may be amended only by joint action of both spouses or both
domestic partners;
(b) To the extent the trust consists of property other than
community property, each trustor may revoke or amend the trust with
regard to the portion of the trust property attributable to that
trustor's contribution;
(c) The character of community property or separate property is
unaffected by its transfer to and from a revocable trust; and
(d) Upon the revocation or amendment of the trust by fewer than all
of the trustors, the trustee shall promptly notify the other trustors
of the revocation or amendment.
(3) The trustor may revoke or amend a revocable trust:
(a) By substantial compliance with a method provided in the terms
of the trust; or
(b)(i) If the terms of the trust do not provide a method or the
method provided in the terms is not expressly made exclusive, by:
(A) A later will or codicil that expressly refers to the trust or
specifically devises property that would otherwise have passed
according to the terms of the trust; or
(B) A written instrument signed by the trustor evidencing intent to
revoke or amend.
(ii) The requirements of chapter 11.11 RCW do not apply to
revocation or amendment of a revocable trust under (b)(i) of this
subsection.
(4) Upon revocation of a revocable trust, the trustee shall deliver
the trust property as the trustor directs.
(5) A trustor's powers with respect to revocation, amendment, or
distribution of trust property may be exercised by an agent under a
power of attorney only to the extent expressly authorized by the terms
of the power, as provided in RCW 11.94.050(1) and to the extent
consistent with or expressly authorized by the trust agreement.
(6) A guardian of the trustor may exercise a trustor's powers with
respect to revocation, amendment, or distribution of trust property
only with the approval of the court supervising the guardianship
pursuant to RCW 11.92.140.
(7) A trustee who does not know that a trust has been revoked or
amended is not liable to the trustor or trustor's successors in
interest for distributions made and other actions taken on the
assumption that the trust had not been amended or revoked.
(8) This section does not limit or affect operation of RCW
11.96A.220 through 11.96A.240.
NEW SECTION. Sec. 37
NEW SECTION. Sec. 38
(a) Twenty-four months after the trustor's death; or
(b) Four months after the trustee sent to the person by personal
service, mail, or in an electronic transmission if there is a consent
of the recipient to electronic transmission then in effect under the
terms of RCW 11.96A.110, a notice with the information required in RCW
11.97.010, and notice of the time allowed for commencing a proceeding.
(2) Upon the death of the trustor of a trust that was revocable at
the trustor's death, the trustee may proceed to distribute the trust
property in accordance with the terms of the trust, unless:
(a) The trustee knows of a pending judicial proceeding contesting
the validity of the trust; or
(b) A potential contestant has notified the trustee of a possible
judicial proceeding to contest the trust and a judicial proceeding is
commenced within sixty days after the contestant sent the notification.
(3) A beneficiary of a trust that is determined to have been
invalid is liable to return any distribution received.
NEW SECTION. Sec. 39 Sections 35 through 38 of this act
constitute a new chapter in Title
NEW SECTION. Sec. 40
(1) This act applies to all trusts created before, on, or after
January 1, 2012;
(2) This act applies to all judicial proceedings concerning trusts
commenced on or after January 1, 2012;
(3) Any rule of construction or presumption provided in this act
applies to trust instruments executed before January 1, 2012, unless
there is a clear indication of a contrary intent in the terms of the
trust;
(4) An action taken before January 1, 2012, is not affected by this
act; and
(5) If a right is acquired, extinguished, or barred upon the
expiration of a prescribed period that has commenced to run under any
other statute before January 1, 2012, that statute continues to apply
to the right even if it has been repealed or superseded.
NEW SECTION. Sec. 41