[WSBAPT] disqualifying a named personal representative
Richard Wills
richardwills at washington-probate.com
Wed Dec 17 08:11:18 PST 2014
*Dewey --- My recollection is that a SEA requires that D's debts be
either paid or provided for. Therefore, if sufficient funds remain to
pay unpaid debts, that should suffice.*
On 12/16/2014 3:35 PM, Dewey Weddle wrote:
> 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=%28sc.Search%29>.
> 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=%28sc.Search%29>.
> 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=%28sc.Search%29>
> 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=%28sc.Search%29>
> (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=%28sc.Search%29>
> (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=%28sc.Search%29>
> (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%27s%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
>>
>>
>> _______________________________________________
>> WSBAPT mailing list
>> WSBAPT at lists.wsbarppt.com
>> http://mailman.fsr.com/mailman/listinfo/wsbapt
>
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