[WSBAPT] disqualifying a named personal representative

Tue Dec 16 15:35:54 PST 2014

Thanks to all who responded.  

I considered a small estate affidavit, but it cannot be used because not all of the debts of the decedent have been paid.

Richard Wills guided me in the right direction.  

In re Estate of Marcella Louise Jones:  152 Wash.2d 1

Any person interested in a will may object to the granting of testamentary letters to the persons named as executors. RCW 11.28.020<http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000259&cite=WAST11.28.020&originatingDoc=I161ebe7ef79d11d9b386b232635db992&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)>. Moreover, the right of beneficiaries to have an estate distributed by law is a primary right, and if a particular person serving as a personal representative may interfere with this right, that person should not be appointed. In re Estate of Langill, 117 Wash. 268, 270, 201 P. 28 (1921)<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1921102137&pubNum=660&originatingDoc=I161ebe7ef79d11d9b386b232635db992&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)>. It is the court's job to guard against waste or loss to the estate. Id. at 269, 201 P. 28.<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1921102137&pubNum=660&originatingDoc=I161ebe7ef79d11d9b386b232635db992&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)> Therefore, where a conflict of interest exists which would contravene the rights of the beneficiaries and result in waste of the estate, a potential representative should be disqualified. See In re Estate of Thomas, 167 Wash. 127, 133-34, 8 P.2d 963 (1932)<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1932103377&pubNum=661&originatingDoc=I161ebe7ef79d11d9b386b232635db992&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)> (holding that where ill will exists which would result in more litigation the court may appoint any suitable person even if that person is outside of the family); In re Estate of Rohrback, 152 Or.App. 68, 72, 74, 952 P.2d 87 (1998)<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1998030991&pubNum=661&originatingDoc=I161ebe7ef79d11d9b386b232635db992&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)> (holding that where a conflict of interest exists, a person may be removed as a personal representative); Genins v. Boyd, 166 Ga.App. 843, 844, 305 S.E.2d 391 (1983)<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1983139397&pubNum=711&originatingDoc=I161ebe7ef79d11d9b386b232635db992&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)> (holding that where a conflict of interest exists, a person may not be appointed as a personal representative).14<file:///C:/Users/Dewey/Documents/Dewey's%20Docs/CLIENT%20FILES/GUARDIANSHIPS/Kertis/In%20re%20Estate%20of%20Jones.doc#co_footnote_B014142004647604_1>

I think I have enough factual and legal support to have the guardian appointed.

Thanks again to all of you who responded, and happy holidays to all.

Dewey

----- Original Message ----- 

From: Richard Wills<mailto:richardwills at washington-probate.com> 

To: WSBA Probate & Trust Listserv<mailto:wsbapt at lists.wsbarppt.com> 

Sent: Tuesday, December 16, 2014 1:50 PM

Subject: Re: [WSBAPT] disqualifying a named personal representative

On 12/16/2014 12:34 PM, Dewey Weddle wrote:

O Wise Ones,

Incapacitated person, subject of guardianship, passed away last week.  Will named her daughter (now deceased) as PR, and her son as First Alternate.  Estate estimated to be less than $10K.    

I represent guardian, who is deceased's granddaughter.  Guardian, son, and others are beneficiaries of the estate.  Long history of strife between son, who was removed as attorney-in-fact when guardianship was established 5 years ago, and guardian.  (Guardian is protected by a DVPO of 25 years duration because of son's conduct [death threats, smashing out windshield of guardian's car]).  Son, with the assistance of a pro bono attorney from the local Volunteer Lawyer Program, has dragged guardian into court many times over the last two years, with one issue recently decided by the Court of Appeals.  Son has lost every time and has been twice sanctioned by the Superior Court.  He presently owes the estate between $3,000 and $4,000 as a result of those sanctions, and has no apparent ability to pay (chronically unemployed and believed to be living on disability benefits).

I am looking for authority or suggestions as to how I might have the guardian appointed to administer the estate.  RCW 11.88.150 (2) allows a guardian to petition to transfer a guardianship to a probate proceeding under some circumstances when the decedent dies intestate, but that is not the case here.  Son does not appear to be disqualified under the statute to act as PR, because he is not a felon or has not been convicted of a crime involving moral turpitude (unless his convictions for violations of the DVPO count as moral turpitude).  Case law supports the proposition that the statute is not exclusive, and that a court can refuse to appoint a named personal representative for other reasons.

Dewey --- There is WA case law standing for the proposition that a named or appointed PR may be disqualified by showing that he or she has a conflict of interest that prevents impartiality.

  I can think of many equitable arguments to have the son disqualified and to have the guardian administer what remains of this small estate, but I am also hoping that some of you might have some suggestions.  Of particular interest to me, does the fact that the son owes the estate money (and in fact has judgments against him) disqualify him to act as PR?  Seems to be a glaring conflict of interest to me.  I also do not think he is bondable. 

Having an independent administrator appointed is not a viable option because payments to that person would essentially result in nothing left to distribute.        

Best regards to all, and thanks in advance for your thoughts,

Dewey

Law Office of Dewey W. Weddle, PLLC
909 7th Street
Anacortes, WA  98221

Telephone  360-293-3600
Fax        360-293-3700

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