[WSBAPT] No-asset insolvent intestate estate, minor child - need a GAL? Who pays?

Tue Nov 25 13:52:18 PST 2014

Richard--I'm with you on your understanding. I think that a PR's resignation without formal closure is a risk assessment for the client: Did the PR in fact complete all practical steps necessary to deal with creditors and distribute to heirs? If there is no harm to the interested parties, there's probably no foul aside from the technical lack of completion in the pleadings. The court isn't likely to pursue the PR unless an injured beneficiary/creditor brings an action.

The main way I can think of for liability to attach to a PR post-resignation is, the PR failed to deal with a creditor or an asset, and a creditor or heir is damaged. Resignation can't possibly have an effect on the PR's liability in that case, and I don't think a statute of limitations would ever accrue because the PR's duty to report to the court never ceases. I have a case right now where I am pursuing damages against a PR who abandoned the probate for years (without actually resigning) leaving some assets undistributed. I can't see that actual resignation would have helped the PR in that case, because the final duty of any resigning PR is to safeguard remaining assets and records and make sure they are properly handed over to a successor. Can't do that when there is no successor.

Re my case that started this thread, I did get one offline suggestion to petition for a decree of distribution and argue to the court that doctrine of virtual representation makes GAL unnecessary, since the child's father is the surviving spouse of the decedent and there is no conflict of interest. I might try that route, though I can see a theoretical conflict in that the children should inherit one-half the separate property of decedent, and characterization of property as separate or community was within the surviving spouse/PR's control.  If there were any actual assets of value, I think I'd need a GAL for sure.

It's usually the Estate that pays for a GAL, right?

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-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Richard Wills
Sent: Tuesday, November 25, 2014 1:15 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] No-asset insolvent intestate estate, minor child - need a GAL? Who pays?

Roger --- An attorney my file & serve a Notice of Intention to Withdraw, & if no objection is timely filed, the withdrawal becomes effective on its stated effective date (so long as proper notice was had --- I file & serve mine by mail & use a 14-day notice period).

A PR may resign & I believe but do not know that that relieves him or her of liability from the effective date of his or her withdrawal --- I haven't had a case to test that.

But for a PR to be relieved of liability for the estate & particularly for his or her actions & omissions during his or her administration of the estate, the PR, according to my understanding, must be discharged, either formally by the Court or as a result of having filed a valid Decl of Completion (with the relevant Receipts & Waivers or a Notice of Filing Thereof etc., as appropriate).  Discharge by the Court, at least in my experience, can come in two ways:

  *   The Court's entry of a Decree of Final Distribution in which the PR is expressly discharged (ie, to close the estate).
  *   The Court's entry of an Order Approving Resignation & Interim Report & Accounting of PR in which the PR is expressly discharged (ie, a resignation before the estate closes, meaning a successor PR will need to be appointed to complete the estate's administration).

In either of those cases, the PR will have reported & accounted to the Court for his or her acts, & the Court discharges the PR regarding them --- but not for undisclosed or fraudulent acts, for which the PR remains liable (& the estate may thereafter be reopened, if it has been closed, to address the prior PR's nondisclosure or fraud, of which cases I've had several --- absent that or the discovery of new estate assets or notice problems regarding the closing, I don't believe an estate may be re-opened, the Final Decree truly being final).

At least that's my understanding of the situation.

I've had numbers of PR resignations, including myself as a PR, & Comm'r V has been quite clear that if the PR wants to be relieved of responsibility, it takes more than a simple resignation --- it takes a formal discharge, & the only way I know how to obtain that is discussed above.

Perhaps others on the list-serve have other experiences or understandings?
On 11/25/2014 11:30 AM, Roger Hawkes wrote:
Thanks, Richard.  Is it possible for a PR to 'withdraw', like a lawyer.  Just quit??  Or is some sort of discharge required?

Roger Hawkes, WSBA # 5173
19909 Ballinger Way NE
Shoreline, WA 98155
www.hawkeslawfirm.com<http://www.hawkeslawfirm.com>
206 367 5000
Fax is 206 367 4005

From: Richard Wills [mailto:richardwills at washington-probate.com]
Sent: Tuesday, November 25, 2014 11:14 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] No-asset insolvent intestate estate, minor child - need a GAL? Who pays?

Yes --- & remains liable for the estate.

On 11/25/2014 10:10 AM, Roger Hawkes wrote:
Interesting thought.  No case will be pending, but the appointed PR is still the PR??

Roger Hawkes, WSBA # 5173
19909 Ballinger Way NE
Shoreline, WA 98155
www.hawkeslawfirm.com<http://www.hawkeslawfirm.com>
206 367 5000
Fax is 206 367 4005

From: Richard Wills [mailto:richardwills at washington-probate.com]
Sent: Tuesday, November 25, 2014 7:48 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] No-asset insolvent intestate estate, minor child - need a GAL? Who pays?

That, however, does not discharge the appointed PR.

On 11/24/2014 3:47 PM, Roger Hawkes wrote:
If you withdraw, the clerk will eventually dismiss the probate for non prosecution.

Roger Hawkes, WSBA # 5173
19909 Ballinger Way NE
Shoreline, WA 98155
www.hawkeslawfirm.com<http://www.hawkeslawfirm.com>
206 367 5000
Fax is 206 367 4005

From: Eric Nelsen [mailto:Eric at sayrelawoffices.com]
Sent: Monday, November 24, 2014 3:08 PM
To: WSBA Probate & Trust listserve (wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>)
Subject: [WSBAPT] No-asset insolvent intestate estate, minor child - need a GAL? Who pays?

No-asset estate, just personal effects of nominal value. Surviving spouse and five kids, one of whom is 13 years old. Received a bunch of creditor claims totalling about $10,000.

Only opened the probate to investigate a wrongful death claim, which was a no-go, so now we need to shut it down with an accounting and final hearing to approve no distribution, no payment to creditors.

RCW 11.76.080(2) seems in indicate that appointment of GAL for the minor child is mandatory. Is that right? If so, who is going to pay the GAL? The Estate has literally nothing--no cash, no vehicle, just some clothes and other effects of no value.

Sincerely,

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA  98101-2837
phone 206-625-0092
fax 206-625-9040

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