                                                                                                                      FED
                                                                                                            COURT OFAPEALS
                                                                                                                  DIVISION II
                                                                                                           2045 MAR 10     A11 8: 39
                                                                                                           ST
                                                                                                                g 0      ASH1NGTON
                                                                                                           BY


         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO

                                                          DIVISION II

    In   re   the Matter   of   the   Guardianship   of:                                No. 45658 -3 -II


    LEON V. JENSEN,


                                            Deceased,


    In re the JENSEN 1980 TRUST
    AGREEMENT dated July 23, 1980,

    JOSEPHINE JENSEN PAPALEO,


                                      Trustee /Appellant,


                v.




    NOVEMBER PAPALEO, beneficiary,                                                UNPUBLISHED OPINION


                                            Appellant,


    v.



    JODI WICKS, JUDY BARRETT and CHAD
    JENSEN, beneficiaries,


                                            Respondents.



                                                               Jo1),
               LEE, J. —   Josephine Jensen Papaleo (                  as trustee of the Jensen Family Trust (the Trust)

established by her father, Leon Jensen, appeals the superior court' s ruling that the estate taxes

attributable to non -Trust property be statutorily apportioned pursuant to the Washington Uniform


1
    To    avoid confusion, we use          the parties'    first   names.   We   mean no   disrespect.
No. 45658 -3 -II



Estate Apportionment Act (RCW 83. 110A. 030( 1)).                  Jo, as trustee, paid the estate taxes attributable


to both Trust       and    non -Trust     property from the Trust.         Jo argues that the Trust gave her the


discretion to pay all estate taxes attributable to Trust and non -Trust property from the Trust assets.

We hold that the language of Leon' s will and the language of the Trust do not express a specific


intent that the Trust pay estate taxes attributable to non -Trust property. Therefore, we affirm.

                                                           FACTS


          When Leon died in 2011, 60.02 percent of his property was held in the Trust and the

remaining 39.98 percent was held in pay -on -death (POD) accounts. The Trust property was to be

distributed in equal shares to Jo, Judy Barrett, Jodi Wicks, and Chad Jensen; the POD accounts

were payable        to   Jo, November Papaleo,       and   Chad.    Jo was designated the trustee of the Trust.2

Before Leon' s death, sizeable gifts were made from Leon' s assets to some of these beneficiaries.


          Leon' s will provided that all inheritance, estate, or other death taxes attributable to his


probate estate or to any other property not a part of the probate estate " shall" be paid out of the

residue of   the    probate estate.       Clerk' s Papers ( CP) at 260. However, to the extent that taxes were


attributable   to   properties     that   were a part of   the Trust, taxes "   shall"   be   paid   by   the Trust.   CP at


261. Leon did not leave any property in the probate estate to pass through his will; his entire estate

was comprised of the Trust property and the POD accounts.3




2 Jo was acting as and was sued in her capacity as trustee and not in her individual capacity.
3
    Both the Trust       and   the POD   accounts are nonprobate    property. RCW 11. 02. 005( 10). Nonprobate
property is defined as a person' s property that will " pass on the person' s death under a written
instrument     or        arrangement      other   than   the   person' s   will."    RCW         11. 02. 005( 10),     RCW
11. 96A.030( 3).



                                                               2
No. 45658 -3 - II



        The Trust provided that upon Leon' s death, the trustee would distribute the trust principle

to the beneficiaries.   However, the Trust provided that the trustee " may" first pay any federal or

state taxes arising by reason of Leon' s death before distributing the Trust principle. CP at 43.

        Jo paid the estate taxes attributable to both the Trust property and the POD accounts from

the Trust. The parties agreed that the estate taxes attributable to the Trust property was properly

paid by the Trust. However, the parties disagreed as to whether the estate taxes attributable to the

non -Trust property (the POD accounts) were properly paid by the Trust.

        Judy, Jodi, and Chad ( the respondents) filed a petition for apportionment of estate taxes
attributable to the POD accounts under The Trust and Estate Dispute Resolution Act ( TEDRA).

Chapter 11. 96A RCW.4 In their petition, the respondents requested the estate taxes attributable to

the POD accounts be statutorily apportioned under RCW 83. 110A.030 because the will did not

fund the designated source of estate tax payment, and the Trust did not provide for estate tax

apportionment of non -Trust assets.     As trustee, Jo objected to the statutory apportionment of the

estate taxes attributable to the POD accounts, claiming that the Trust gave the trustee the discretion

to determine whether the estate taxes should be paid from the Trust prior to distribution. Jo also


argued that if the estate taxes are statutorily apportioned, apportionment should include gifts made,

with the court' s permission, during Leon' s lifetime.

        The superior court ruled that because neither the will nor the Trust specifically provided

for apportionment of estate taxes between Trust property and POD accounts, RCW 83. 110A.030




4 TEDRA provides that the superior court has jurisdiction over the administration of estates, and
that it may   administer and settle all matters   relating to trusts. RCW 11. 96A.010, . 040( 1), (   3).




                                                       3
No. 45658 -3 -II



applies and the estate taxes attributable to the POD accounts should be apportioned pro rata.

Further, the superior court determined the lifetime gifts made from Leon' s assets are not subject

to the estate tax apportionment under Washington law. Jo appeals. 5

                                                   ANALYSIS


         Jo argues that the superior court erred in ordering statutory apportionment of the estate

taxes   attributable    to the POD   accounts.   She asserts that under the terms of the Trust, she had the


discretion to pay all estate taxes from the Trust. She also asserts that the superior court improperly

refused to include the lifetime gifts made out of Leon' s assets in its apportionment. We disagree.

A.       STATUTORY APPORTIONMENT UNDER RCW 83. 110A.030


          1.       Legal Principles


         In Washington, RCW 83. 110A.030 governs the apportionment of estate taxes unless a will


or trust specifically expresses the intent to require other beneficiaries to carry the tax burden. In

Re Estate of Mumby, 97 Wn.           App.   385, 396, 982 P. 2d 1219 ( 1999). RCW 83. 110A. 030 provides


in relevant part:


         To the extent that apportionment of an estate tax is not controlled by an instrument
         described in RCW 83. 110A.020 .. .
                    1) . .   the estate tax is apportioned ratably to each person that has an interest
         in the apportionable estate.




5 In their petition for equitable distribution, the respondents argued that Jo breached her fiduciary
duties to the Trust and petitioned for her discharge. However, the superior court ruled that Jo did
not breach her fiduciary duty. On appeal, although the respondents offer briefing about breach of
fiduciary duty, they have not cross -appealed the issue. Therefore, we do not consider the
respondents' argument that Jo breached her fiduciary duty. Singletary v. Manor Healthcare Corp.,
166 Wn. App. 774, 787, 271 P. 3d 356, review denied, 175 Wn.2d 1008 ( 2012) ( holding that absent
a cross -appeal, this court would not consider respondent' s argument for affirmative relief).


                                                         4
No. 45658 -3 -II




Thus, RCW 83. 110A.030 requires that estate taxes be statutorily apportioned between parties with

an interest in the estate unless apportionment is controlled by an instrument described in RCW

83. 110A.020.


       RCW 83. 110A.020 provides in relevant part:


                    a) To the extent that a provision of a decedent' s will provides for the
        apportionment of an estate tax, the tax must be apportioned accordingly.

                b) Any portion of an estate tax not apportioned pursuant to ( a) of this
        subsection must be apportioned in accordance with any provision of a revocable
       trust of which the decedent was the settlor which provides for the apportionment of
        an estate tax.


In order to avoid statutory apportionment under RCW 83. 110A.030, an instrument (the will or the

trust) must clearly apportion estate taxes and express the specific intent to require certain assets to

carry the tax burden. RCW 83. 110A. 020; Mumby, 97 Wn. App. at 396. We review the application

of a statute   de   novo.    Jongeward   v.   BNSF   Ry. Co., 174 Wn.2d 586, 592, 278 P. 3d 157 ( 2012).

        Our primary duty when interpreting a will or a trust is to give effect to the

testator' s /trustor' s intent. In re Estate ofBernard, 182 Wn. App. 692, 704, 332 P. 3d 480 ( 2014).

If the language of the instrument is unambiguous, we ascertain the testator' s/ trustor' s intent from

the language of the instrument itself without extrinsic evidence. Id.; In re Wash. Builders Benefit


Trust, 173 Wn.      App.    34, 76, 293 P. 3d 1206, 177 Wn.2d 1018 ( 2013).   We interpret a will or trust


instrument de novo. Bernard, 182 Wn. App. at 704.




                                                         5
No. 45658 -3 -II



           2.         Language of the Will and Trust


           Here, the Will provision regarding estate tax payments states:

                                                                  VI.


                      All inheritance, estate, or other death taxes that may, by reason of my death,
           be attributable to my probate estate or to any other property not a part of my probate
           estate shall be paid by my Executor out of the residue of my probate estate
           provided, however, that to the extent such taxes are attributable to properties which
           become, prior to my death, a part of the Trust referred to in this Will, then such
           taxes shall be charged to and collected from the Trustee of said Trust.


CP   at   260 -61 (   emphasis added).      The plain language of the will evidences Leon' s intent to treat


estate taxes attributable to Trust property differently than estate taxes attributable to non -Trust

property by directing the Trust to pay all estate taxes attributable to Trust property and the residual

probate estate to pay all estate taxes attributable to non -Trust property.

           The Trust provision that Jo relies on reads as follows:


           Section 8. 04. Failure to Effectively Appoint.

                   Any of the Survivor' s Trust not effectively appointed by the Survivor as set
           forth above shall be added to the principal of the Family Trust and administered in
           accordance with the provisions thereof; provided that the Trustee in its discretion
           mayfirst pay out ofany ofthe principal ofthe Survivor 's Trust not so appointed (i)
           any last illness and funeral expenses of the Survivor, ( ii) any expenses incurred in
           the    administration    of    the     affairs    of    said   Trustor,   including     attorneys'   and

           accountants' fees for general or special services rendered and any other probate fees
           and (iii) anyfederal or state taxes includingpenalties and interest arising by reason
           ofsaid Trustor 's death.

CP   at   43 (   emphasis added).   Here, the plain language of Section 8. 04 does not express a specific


intent for the Trust to pay the          estate   taxes     attributable   to   non -Trust   property.   To avoid statutory

apportionment, the instrument must express a specific intent for certain property to carry the entire

estate    tax    burden.   Mumby,   97 Wn.      App.   at    396.      At best, the language in the Trust merely gives




                                                                   6
No. 45658 -3 -II



the Trustee the         discretion to pay taxes         related      to Leon'   s   death.   Therefore, based on the


discretionary language of Section 8. 04 and the established case law, we hold that the Trust does

not express a specific intent for the Trust to pay all estate taxes attributable to Trust and non -Trust

property.


            3.     Statutory Apportionment Required

            The will expresses a specific intent to treat estate taxes attributable to Trust assets


differently than estate taxes arising from non -Trust assets and specifically directs estate taxes

attributable to Trust property be paid by the Trust and estate taxes attributable to non -Trust

property be      paid   by   the   residual probate     estate.       Because there is no residual probate estate,


statutory apportionment is required. Seattle -First Nat' l. Bank v. Macomber, 32 Wn.2d 696, 704,

203 P. 2d 1078 ( 1949);        cf. In re Estate. of Offield, 7 Wn. App. 897, 905, 503 P.2d 767 ( 1972)

    holding that where costs were to be paid from the residuary estate, but the residuary estate was

insufficient to pay, the      deficiency     would     be   paid pursuant    to statutory    apportionment).   Thus, the


estate taxes attributable to the POD accounts must be statutorily apportioned pursuant to RCW
                                                                 6
83. 110A. 030 among the            non -Trust   beneficiaries.       Accordingly, the superior court did not err in

ordering statutory apportionment of estate taxes attributable to the POD accounts.




6
     Statutory apportionment where the trustor' s directed apportionment could not be fulfilled is
consistent with     the intent       of   the Uniform Estate         Tax Apportionment Act.         UNIF. ESTATE TAX
APPORTIONMENT ACT § 3                cmt. ( amended     2003), 8A U.L.A. 410 -13 ( 2014); UNIF. ESTATE TAX
APPORTIONMENT            ACT (      2003), §       3    cmt.,        8A   U. L.A.    410 -13 (   2044),   available   at

http: / /www.uniformlaws. org /shared /docs/ estate% 20tax                %20apportionment /UETAA_ %202011 _F
inal %20Act 2014sep9.pdf.




                                                                7
No. 45658 -3 - II




B.        LIFETIME GIFTS


          Jo also asserts that if this court holds that statutory apportionment of estate taxes is

appropriate, then the gifts made from Leon' s assets during his lifetime should be considered in

apportioning the estate taxes. We disagree.

          Jo'   s   argument          is confusing.      She   starts   by    noting that the " gifts were made to avoid


Washington estate tax" because Washington does not tax gifts, and " with the recognition that the


amounts would             be included       as assets   for   determining      federal   estate   tax."   Br. of Appellant at 22.


Later,   she states       that Washington includes the             value of gifts       in apportioning     estate   tax.   She then


asserts, without authority, that RCW 83. 110A.010( 3) includes lifetime gifts.

          Although Jo conflates issues of state and federal tax, both parties seem to agree that the


lifetime gifts are not subject to Washington gift or estate tax. Washington does not have a gift tax.


WAC 458- 57- 005( 2)( b).                And Washington' s estate tax does not apply to gifts made during the

decedent' s lifetime. WAC 458- 57- 005 (2)( b).


          The Internal Revenue Code ( IRC)                     provides a "     unified   credit,"   which a taxpayer can use


either against a gift           tax   during life,   or against estate   tax   after   death. 26 U.S. C. §§ 2010( a), 2505( a).


United States        v.   Hemme, 476 U.S. 558, 561, 106 S. Ct. 2071, 90 L. Ed. 2d 538 ( 1986).                              In 2011


when     Leon died, the          unified credit against estate          tax   was $   5, 000, 000. 26 USC §§ 2010( c)( 3)( A),


2505.     The Internal Revenue Service includes the lifetime gifts to the total value of the estate to

determine       whether         any   unified credit remains.       The IRC defines the gross estate as the " value at


the time of his death of all property, real or personal, tangible or intangible, wherever situated."

26 USC § 2031(            a).   Unless the decedent retains control over the lifetime gift, lifetime gifts are not




                                                                    8
No. 45658 -3 -II




included in the    gross estate.     26 USC §§        2031, 2033. The gifts were completed during Leon' s life,

and Leon did not retain any interest or control over the property.

         Jo does not offer any citation or authority for her assertion that either the state or the federal

tax code permits recapturing of completed lifetime gifts for purposes of estate tax apportionment.

Further, Jo has not provided any records or authority to support her claim that the lifetime gifts

were   actually   subject   to   state or   federal   estate   tax. Moreover, "[ w]here no authorities are cited in


support of a proposition, the court is not required to search out authorities, but may assume that

counsel, after    diligent   search,   has found       none."    DeHeer v. Seattle Post -Intelligencer, 60 Wn.2d


122, 126, 372 P.2d 193 ( 1962).


         Jo' s argument regarding lifetime gifts is not supported by authority and not persuasive.

The superior court did not err in determining that the lifetime gifts made from Leon' s assets are

not subject to estate tax apportionment.


                                                  ATTORNEY FEES


         Both    parties request     attorney fees      on appeal under    RCW 11. 96A. 150    and   RAP 18. 1.    We


may, in    our   discretion,     award reasonable        attorney fees to any party.    RCW 11. 96A. 150.         In re


Estate of Harder,            Wn.   App. ,         341 P. 3d 342, 346 ( 2015). RCW 11. 96A. 150 provides


          1) Either the superior court or any court on an appeal may, in its discretion, order
         costs, including reasonable attorneys' fees, to be awarded to any party: ( a) From
         any party to the proceedings; ( b) from the assets of the estate or trust involved in
         the proceedings; or ( c) from any nonprobate asset that is the subject of the
         proceedings.       The court may order the costs, including reasonable attorneys' fees,
         to be paid in such amount and in such manner as the court determines to be
          equitable. In exercising its discretion under this section, the court may consider any
          and all factors that it deems to be relevant and appropriate, which factors may but
         need not include whether the litigation benefits the estate or trust involved.




                                                                 9
No. 45658 -3 -II



        We   exercise our   discretion   and award   attorney fees to the   respondents on appeal.   The


attorney fees award shall be paid from the Trust.

        We affirm.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




 We concur:




                                                     10
