[WSBAPT] PR Liability for Contaminated Property

Mon Aug 18 12:04:02 PDT 2014

All – A friend forwarded the below chain of emails.  The Model Toxics
Control Act (MTCA) includes protections for fiduciaries who administer an
estate that includes contaminated properties.  I helped draft the
fiduciary protection sections of the statute years ago.

There are certain steps that need to be taken to protect the fiduciary
(outlined in the statute).  The estate will still be liable, but the
provisions are intended to promote the effective administration of the
estate by not exposing the fiduciary to personal liability.

Please feel free to contact me if you would like any further information.
In addition to the contact information below, I can be reached at
206-512-7060.  Thanks.

Patti Thompson

3417 Evanston Ave N, Suite 431

Seattle, WA  98103

(206) 659-0189 v.  (206) 687-7206 f.

patti at thompsonenvlaw.com

From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of ROBERT MILLSAP
Sent: Monday, August 18, 2014 10:04 AM
To: wsbapt at lists.wsbarppt.com
Subject: RE: [SPAM] Re: [WSBAPT] Contaminated real property in an estate

I see your argument and I think it is right.  I just wish there was some
case law to support it.  I would hate to be a PR confronting this
situation and end up with the cost of being the “first impression” in a
court case.  How do you protect a PR in this situation over and beyond RCW
11.04.250?  Do you move the court for instructions?  If I was the PR I
would want that protection I think paid for by the Estate and not out of
my own pocket. 

ROBERT MILLSAP

MILLSAP LAW FIRM, P.S.

7016 35TH AVE NE

SEATTLE, WA 98115

206-583-2740

From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of Howard Herman
Sent: Sunday, August 17, 2014 3:21 PM
To: wsbapt at lists.wsbarppt.com
Subject: RE: [SPAM] Re: [WSBAPT] Contaminated real property in an estate

11.04.250
When real estate vests — Rights of heirs.

When a person dies seized of lands, tenements or hereditaments, or any
right thereto or entitled to any interest therein in fee or for the life
of another, his or her title shall vest immediately in his or her heirs or
devisees, subject to his or her debts, family allowance, expenses of
administration, and any other charges for which such real estate is liable
under existing laws. No administration of the estate of such decedent, and
no decree of distribution or other finding or order of any court shall be
necessary in any case to vest such title in the heirs or devisees, but the
same shall vest in the heirs or devisees instantly upon the death of such
decedent: PROVIDED, That no person shall be deemed a devisee until the
will has been probated.

It doesn’t appear that the PR is in the chain of title, although by
statute, the PR can convey title.

Howard Herman

Herman Herman & Jolley, P.S.

12340 E Valleyway

Spokane Valley WA 99216

From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of Robert Millsap
Sent: Saturday, August 16, 2014 6:48 PM
To: wsbapt at lists.wsbarppt.com
Subject: [SPAM] Re: [WSBAPT] Contaminated real property in an estate

The PR would be in the chain of title though.  Wouldn't that expose the PR
to liability.  I recall that whenever I suggested a corporate fiduciary in
a PR or Trustee role, they would give me a draft of environmental
indemnity language to add to the Will or Trust that really emphasized the
exposure that they felt.

Sent from my iPhone

On Aug 16, 2014, at 6:37 PM, Eric Nelsen <Eric at sayrelawoffices.com> wrote:

Sam may be right, but I think one also could argue that the PR's duty as
fiduciary does not extend to cleanup, so long as the hazard was not
actually deposited on the property during the PR's watch. One could
analogize to a deteriorated house: the PR has no duty to renovate the
house before selling, but only to get the best price consistent with
settling the estate "without loss." If the property was contaminated when
the decedent had it, the PR shouldn't have a duty to clean it up.

I would argue, however, that the PR should disclose the contamination to
the beneficiary, so the bene can at least make an informed decision about
whether to repudiate the gift.

PR could also sell the property with disclosure to buyers, get the best
price possible, and distribute cash. It would require some thinking
through how to insulate the Estate from liability (indemnity from Buyer?),
but I think that's often done for any seller of contaminated property.

Sincerely,

Eric

Eric C. Nelsen

SAYRE LAW OFFICES, PLLC

1320 University St

Seattle WA  98101-2837

phone 206-625-0092

fax 206-625-9040

From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at listswsbarppt.com
<mailto:wsbapt-owner at lists.wsbarppt.com> ] On Behalf Of Sam Furgason
Sent: Saturday, August 16, 2014 2:37 PM
To: wsbapt at lists.wsbarppt.com
Subject: RE: [WSBAPT] Contaminated real property in an estate

The Personal Representative of an estate does not deal at arm’s length
with the beneficiaries, but is a fiduciary who owes the beneficiaries the
highest duty of good faith in all dealings. Any person who is in the chain
of title to real property which contains environmental hazards proscribed
by federal law may be held liable for the cleanup. The estate may owe a
duty to remove the contaminant(s) prior to distribution. Better research
it. 

S 

From:  <mailto:wsbapt-owner at lists.wsbarppt.com>
wsbapt-owner at lists.wsbarppt.com [mailto:wsbapt-owner at listswsbarppt.com
<mailto:wsbapt-owner at lists.wsbarppt.com> ] On Behalf Of Sherry Bosse
Lueders
Sent: Saturday, August 16, 2014 12:02 PM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] Contaminated real property in an estate

Has anyone run across the following scenario? PR discovers real property
in an estate is contaminated. Does the PR have any duty to remove
contaminant from the property before transferring it to the beneficiary?
Is there even a duty to disclose the presence of the contamination to the
beneficiary, since no Form 17 would be required if PR were to sell the
real property? 

Thanks for your collective wisdom!

Best Regards,

Sherry Bosse Lueders | Of Counsel

Stacey L. Romberg, Attorney at Law

Telephone:  (206) 784-5305

Fax:  (206) 789-8103

Visit our website at http://staceyromberg.com/.

This email may contain information that is privileged, confidential, or
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Bar Association nor its officers or agents. 

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All opinions and comments in this message represent the views of the
author and do not necessarily have the endorsement of the Washington State
Bar Association nor its officers or agents. 

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Information provided on this list should not be considered legal advice.
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representations are made as to the accuracy of any information provided.
All opinions and comments in this message represent the views of the
author and do not necessarily have the endorsement of the Washington State
Bar Association nor its officers or agents. 

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representations are made as to the accuracy of any information provided.
All opinions and comments in this message represent the views of the
author and do not necessarily have the endorsement of the Washington State
Bar Association nor its officers or agents. 

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Bar Association nor its officers or agents. 

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