[WSBAPT] disqualifying a named personal representative

Tue Dec 16 16:53:52 PST 2014

Excellent.

James R. Doran

Attorney at Law

100 E. Pine Street - Suite 205

Bellingham, WA 98225

(360)393-9506

 <mailto:jim at doranlegal.com> jim at doranlegal.com

www.doranlegal.com

From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Dewey Weddle
Sent: Tuesday, December 16, 2014 3:36 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] disqualifying a named personal representative

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.
<http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000259&cit
e=WAST11.28.020&originatingDoc=I161ebe7ef79d11d9b386b232635db992&refType=LQ&
originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&co
ntextData=(sc.Search)> RCW 11.28.020. 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.
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1921102137&
pubNum=660&originatingDoc=I161ebe7ef79d11d9b386b232635db992&refType=RP&origi
nationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&context
Data=(sc.Search)> In re Estate of Langill, 117 Wash. 268, 270, 201 P. 28
(1921). It is the court's job to guard against waste or loss to the estate.
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1921102137&
pubNum=660&originatingDoc=I161ebe7ef79d11d9b386b232635db992&refType=RP&origi
nationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&context
Data=(sc.Search)> Id. at 269, 201 P. 28. 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
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1932103377&
pubNum=661&originatingDoc=I161ebe7ef79d11d9b386b232635db992&refType=RP&origi
nationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&context
Data=(sc.Search)> In re Estate of Thomas, 167 Wash. 127, 133-34, 8 P.2d 963
(1932) (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);
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1998030991&
pubNum=661&originatingDoc=I161ebe7ef79d11d9b386b232635db992&refType=RP&origi
nationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&context
Data=(sc.Search)> In re Estate of Rohrback, 152 Or.App. 68, 72, 74, 952 P.2d
87 (1998) (holding that where a conflict of interest exists, a person may be
removed as a personal representative);
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1983139397&
pubNum=711&originatingDoc=I161ebe7ef79d11d9b386b232635db992&refType=RP&origi
nationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&context
Data=(sc.Search)> Genins v. Boyd, 166 Ga.App. 843, 844, 305 S.E.2d 391
(1983) (holding that where a conflict of interest exists, a person may not
be appointed as a personal representative).
<file:///C:\Users\Dewey\Documents\Dewey's%20Docs\CLIENT%20FILES\GUARDIANSHIP
S\Kertis\In%20re%20Estate%20of%20Jones.doc#co_footnote_B014142004647604_1>
14

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

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

_______________________________________________
WSBAPT mailing list
WSBAPT at lists.wsbarppt.com <mailto:WSBAPT at lists.wsbarppt.com> 
http://mailman.fsr.com/mailman/listinfo/wsbapt

_______________________________________________
WSBAPT mailing list
WSBAPT at lists.wsbarppt.com <mailto:WSBAPT at lists.wsbarppt.com> 
http://mailman.fsr.com/mailman/listinfo/wsbapt

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20141216/da3d6a91/attachment.html>