Washington Code 11.96A.120 – Application of doctrine of virtual representation
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(1) Notice to a person who may represent and bind another person under this section has the same effect as if notice were given directly to the other person.
Terms Used In Washington Code 11.96A.120
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Common law: The legal system that originated in England and is now in use in the United States. It is based on judicial decisions rather than legislative action.
- Decedent: A deceased person.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Irrevocable trust: A trust arrangement that cannot be revoked, rescinded, or repealed by the grantor.
- Issue: means all the lineal descendants of an individual. See Washington Code 11.02.005
- person: may be construed to include the United States, this state, or any state or territory, or any public or private corporation or limited liability company, as well as an individual. See Washington Code 1.16.080
- Personal representative: includes executor, administrator, special administrator, and conservator or limited conservator and special representative. See Washington Code 11.02.005
- 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 must 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. See Washington Code 11.02.005
- Trustee: A person or institution holding and administering property in trust.
- 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. See Washington Code 11.02.005
- Trustor: The person who makes or creates a trust. Also known as the grantor or settlor.
- Trustor: means a person, including a testator, who creates, or contributes property to, a trust. See Washington Code 11.02.005
(2) The consent of a person who may represent and bind another person under this section is binding on the person represented unless the person represented objects to the representation before the consent would otherwise have become effective.
(3) The following limitations on the ability to serve as a virtual representative apply:
(a) A trustor may not represent and bind a beneficiary under this section with respect to the termination and modification of an irrevocable trust; and
(b) Representation of an incapacitated trustor with respect to his or her powers over a trust is subject to the provisions of RCW 11.103.030, and chapters 11.96A and 11.130 RCW.
(4) To the extent there is no conflict of interest between the representative and the person represented or among those being represented with respect to the particular question or dispute:
(a) A guardian may represent and bind the estate that the guardian controls, subject to chapters 11.96A and 11.130 RCW;
(b) A guardian of the person may represent and bind the incapacitated person if a guardian of the incapacitated person’s estate has not been appointed;
(c) An agent having authority to act with respect to the particular question or dispute may represent and bind the principal;
(d) A trustee may represent and bind the beneficiaries of the trust;
(e) A personal representative of a decedent‘s estate may represent and bind persons interested in the estate; and
(f) A parent may represent and bind the parent’s minor or unborn child or children if a guardian for the child or children has not been appointed.
(5) Unless otherwise represented, a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown and not reasonably ascertainable, may be represented by and bound by another having a substantially identical interest with respect to the particular question or dispute, but only to the extent there is no conflict of interest between the representative and the person represented with regard to the particular question or dispute.
(6) Where an interest has been given to persons who comprise a certain class upon the happening of a certain event, the living persons who would constitute the class as of the date the representation is to be determined may virtually represent all other members of the class as of that date, but only to the extent that there is no conflict of interest between the representative and the person(s) represented with regard to the particular question or dispute.
(7) Where an interest 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 heirs, issue, or other kindred of that living person or the distributees of the estate of that living person upon the happening of a future event, that living person may virtually represent the surviving spouse or surviving domestic partner, heirs, issue, or other kindred of the person, and the distributees of the estate of the person, but only to the extent that there is no conflict of interest between the representative and the person(s) represented with regard to the particular question or dispute.
(8) Except as otherwise provided in subsection (7) of this section, where an interest 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, the living person or persons who would take the interest upon the happening of the first event may virtually represent the persons and classes of persons who might take on the happening of the additional future event, but only to the extent that there is no conflict of interest between the representative and the person(s) represented with regard to the particular question or dispute.
(9) 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, the holder of a lifetime or testamentary power of appointment may virtually represent and bind persons who are permissible appointees or takers in default (but only to the extent that they are permissible appointees in the case of a limited power of appointment) under the power, and who are not permissible distributees as defined in RCW 11.98.002.
(10) The attorney general may virtually represent and bind a charitable organization if:
(a) The charitable organization is not a qualified beneficiary as defined in RCW 11.98.002 specified in the trust instrument or acting as trustee; or
(b) The charitable organization is a qualified beneficiary, but is not a permissible distributee, as those terms are defined in RCW 11.98.002, and its beneficial interest in the trust is subject to change by the trustor or by a person designated by the trustor.
(11) An action taken by the court is conclusive and binding upon each person receiving actual or constructive notice or who is otherwise represented under this section.
(12) 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 may not be construed as limiting the application of that common law doctrine.
[ 2020 c 312 § 715; 2013 c 272 § 5; 2011 c 327 § 9; 2008 c 6 § 928; 2001 c 203 § 11; 1999 c 42 § 305.]
NOTES:
Effective dates—2020 c 312: See note following RCW 11.130.915.
Application—2013 c 272: See note following RCW 11.98.002.
Application—Effective date—2011 c 327: See notes following RCW 11.103.020.