[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
>>
>>
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>
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