[WSBAPT] Questions regarding wrongful death claims and probate

Wed Aug 19 13:47:02 PDT 2015

Thank you all for the help!

Corey Rogers

On Wed, Aug 19, 2015 at 10:39 AM, Paul Neumiller <pneumiller at hotmail.com>
wrote:

> Eric, thanks for the clarification.  I use the following language in all
> of my fee agreements for probates:
>
>
>
> “You are personally responsible for payment of all amounts due, for
> example, if the estate has insufficient funds for their payment.  My
> services on behalf of the estate are, by law, limited to representing you
> as personal representative for the estate.  I do not represent you as an
> individual, or your interests as an individual beneficiary.  I do not
> represent the estate itself, or any of the estate's beneficiaries.  So, for
> example, if you had a claim against the estate for services rendered to the
> decedent, or if you got into a dispute with other beneficiaries over
> distribution of assets, you might have to hire separate counsel for that
> matter.  My job is to assist you in your work as personal representative
> throughout the probate process, with a primary focus on assisting you in
> carrying out your fiduciary duties according to the law.”
>
>
>
> In other words, I gotta get paid.
>
>
>
>
>
>
>
> *From:* wsbapt-bounces at lists.wsbarppt.com [mailto:
> wsbapt-bounces at lists.wsbarppt.com] *On Behalf Of *Eric Nelsen
> *Sent:* Wednesday, August 19, 2015 10:18 AM
> *To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
>
> *Subject:* Re: [WSBAPT] Questions regarding wrongful death claims and
> probate
>
>
>
> No, you're right--I was being sloppy about terminology. The attorney
> represents the PR in her/his fiduciary capacity, and not the Estate itself.
> But the PR's costs of administration are debts of the Estate. I suppose
> technically as the PR's attorney I could go after the PR individually if
> the Estate didn't have enough money to pay me, but I just didn't think
> about that before answering because I never do it.
>
>
>
> The proposed indemnity would not be needed if it were the PR client
> agreeing to pay even if the Estate doesn't have enough assets...though I
> would want to be explicit with my client that s/he is still obligated to
> pay costs even if the Estate doesn't have the money.
>
>
>
> But what I had in mind for the indemnity, was more the situation where
> someone who *isn't* going to be the PR agrees to pay the costs. For
> example, a statutory beneficiary of the wrongful death claim, who wants the
> claim to be pursued but isn't going to be the PR. Then, the bene could
> indemnify the Estate (and the PR individually, maybe?) from the costs, and
> the RPC disclosure would be needed.
>
>
>
> 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
> <wsbapt-bounces at lists.wsbarppt.com>] *On Behalf Of *Paul Neumiller
> *Sent:* Wednesday, August 19, 2015 8:55 AM
> *To:* 'WSBA Probate & Trust Listserv'
> *Subject:* Re: [WSBAPT] Questions regarding wrongful death claims and
> probate
>
>
>
> I’m confused as to your answer to #3. I thought that an attorney assisted
> the PR in properly performing the PR’s duties in a probate and that the
> attorney specifically did not represent the “estate.”  I guess I didn’t
> realize that the estate was a separate legal entity.  If the attorney
> represents the “estate” and not the PR, who does the attorney report to?
>
>
>
>
>
>
>
> *From:* wsbapt-bounces at lists.wsbarppt.com [
> mailto:wsbapt-bounces at lists.wsbarppt.com
> <wsbapt-bounces at lists.wsbarppt.com>] *On Behalf Of *Eric Nelsen
> *Sent:* Tuesday, August 18, 2015 4:01 PM
> *To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>;
> wsbapt at listserv.nethelps.com
> *Subject:* Re: [WSBAPT] Questions regarding wrongful death claims and
> probate
>
>
>
> 1. Yes--Case law is clear that only a PR can pursue a wrongful death
> claim, per RCW 4.02.010
> <http://app.leg.wa.gov/rcw/default.aspx?cite=4.20&full=true#4.20.010>.
> The statutory beneficiaries have no right to bring a claim themselves--it
> has to be a PR.
>
> 2. Yes, but she also remains responsible on her own fiduciary duty to make
> decisions. Maybe just have the adult child named as PR instead?
>
> 3. The Estate is typically the one to retain the attorney and so is on the
> hook for costs. But someone else could sign an indemnity to the Estate and
> agree to pay the costs independently (subject to the law firm's agreement
> and disclosures under RPCs in situation where the firm gets paid by someone
> other than the client).
>
>
>
> 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
> <wsbapt-bounces at lists.wsbarppt.com>] *On Behalf Of *Corey Rogers
> *Sent:* Tuesday, August 18, 2015 3:39 PM
> *To:* WSBA; wsbapt at listserv.nethelps.com
> *Subject:* [WSBAPT] Questions regarding wrongful death claims and probate
>
>
>
> Hypothetical client is adult child of deceased father who died as a result
> of medical malpractice.  Mother is still alive, and mother and father were
> married at time of death.  The estate is small and consists almost entirely
> of retirement accounts.  Mother is working to get those assets paid out,
> but no probate has been opened (it's possible they don't need a probate at
> all).  However, they do need a PR to handle the wrongful death claim.
>
>
>
> Here are the questions I have:
>
>
>
> (1) Does the family need to open a probate even if they could otherwise
> avoid it (i.e. small estate exception) just to get a PR appointed for the
> wrongful death claim?
>
>
>
> (2) If mother is appointed PR, can she delegate the duty of dealing with
> wrongful death attorney to adult child through a power of attorney once
> she's appointed PR?
>
>
>
> (3) Is the estate of the deceased always on the hook for advanced costs
> when a med/mal case is handled on contingent fee, or is there a way to wall
> off the estate from those potential costs if there's no recovery on the
> med/mal claim?
>
>
>
>
>
> I appreciate any help with these questions.
>
>
>
> Sincerely,
>
>
>
> Corey Rogers
>
>
>
> --
>
> Corey H. Rogers
> Attorney at Law
> Findley & Rogers, PLLC
>
> 600 N. 36th Street, Suite 207
>
> Seattle, WA 98103
>
> T: (206) 331-7377
> F: (206) 486-9930
> corey at findleyrogerslaw.com
>
> The content of this email and any attachments may contain information or
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> Thank you.
>
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-- 
Corey H. Rogers
Attorney at Law
Findley & Rogers, PLLC
600 N. 36th Street, Suite 207
Seattle, WA 98103

T: (206) 331-7377
F: (206) 486-9930
corey at findleyrogerslaw.com

The content of this email and any attachments may contain information or
correspondence that is protected from disclosure by the attorney client
privilege.  This email is intended only for its intended recipient.  If you
receive this email in error, you are prohibited from disseminating this
email and must delete it immediately.   Please also contact Findley &
Rogers, PLLC if you receive this email and are not the intended recipient.
Thank you.
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