[WSBAPT] PR Delegate Duties??

Tue Dec 22 14:17:53 PST 2015

John, thank for your input and practical advice.  I DO NOT represent either
Co-PR but another interested party in the probate.  My fact pattern is much
more complex.  As it turns out, my client actually prefers working with the
designee (who is not the Co-PR) instead of the original Co-PR (I learned of
this after I posted my question) so, as far as my client is concerned, "no
harm, no foul."

As an intellectual endeavor however, it is curious that I received such
opposite answers.  I must admit that I am not convinced with the statute
cited by Amy.  RCW 11.68.090 says, in part:  "Any personal representative
acting under nonintervention powers may borrow money on the general credit
of the estate and may mortgage, encumber, lease, sell, exchange, convey, and
otherwise have the same powers, and be subject to the same limitations of
liability, that a trustee has under chapters 11.98, 11.100, and 11.102 RCW
with regard to the assets of the estate, both real and personal,.."  Without
knowing if there are any reported cases on this point, I would argue that a
trustee's power to delegate her duties under RCW 11.98.071 has nothing to do
"with regard to the assets of the estate" but rather to a trustee's powers
in general.   In other words, maybe the drafters of the statute wanted to
give a PR the ability to deal with assets of an estate in the same manner as
the powers of a trustee but NOT give the PR the same flexibility to delegate
the PR's duties.  As pointed out by another listserv member, the original PR
is the one identified on the Letters Testamentary.  

From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of John Creahan
Sent: Tuesday, December 22, 2015 1:27 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] PR Delegate Duties??

Hi Paul,

There has been a lot of discussion on this already, but I will weigh in as
well.

>From a legal perspective, I doubt that one PR can delegate some or all of
her duties over the other PR's objection. Assuming that they have been
appointed with non-intervention powers, I agree with Amy that RCW 11.98.071
is the correct starting point, but that statute does not really appear to
contemplate delegation of duties by one of two fiduciaries.

Having said that, I don't think that the legal question is the key to
resolving this issue. 

Do you represent both PRs in their role as PRs?

If so, do you know to whom she has tentatively delegated her duties and why
she wants to do so? 

She may have done so without really thinking the issue through or
understanding what it means to be a fiduciary. 

If she simply does not want to participate, she can delegate to the other PR
(see RCW 11.98.016) or resign and allow her sibling to manage the estate. If
she doesn't trust her sibling, things get more complex, but she could hire
separate counsel (either in her role as PR or as beneficiary) or she could
try to convince her co-PR that both should resign in favor of a third party.

Hope this helps,

John

John Creahan

206-621-5848
 <http://www.cairn-law.com/> www.cairn-law.com

From: wsbapt-bounces at lists.wsbarppt.com
<mailto:wsbapt-bounces at lists.wsbarppt.com>
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Lewis, Amy C.
Sent: Monday, December 21, 2015 12:06 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com
<mailto:wsbapt at lists.wsbarppt.com> >
Subject: Re: [WSBAPT] PR Delegate Duties??

Take a look at RCW 11.98.071, which allows a trustee to delegate, and RCW
11.68.090, which grants a non-intervention PR the same powers as a trustee
under RCW 11.98.

Amy C. Lewis, Attorney

ESTATE PLANNING & PROBATE

1200 Wells Fargo Plaza | 1201 Pacific Avenue | Tacoma, WA 98402
phone 253.572.4500 | fax 253.272.5732 |  <http://www.eisenhowerlaw.com/>
www.eisenhowerlaw.com

From: wsbapt-bounces at lists.wsbarppt.com
<mailto:wsbapt-bounces at lists.wsbarppt.com>
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Monday, December 21, 2015 9:47 AM
To: wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> 
Subject: [WSBAPT] PR Delegate Duties??

Listmates:  First time situation for me.  Co-Personal Representatives are
nominated by Will and appointed by the court.  The Co-Personal
Representatives are siblings and sole beneficiaries under the Will.  I am
now told that one of the Co-Personal Representatives has "appointed someone
to act on her behalf when she is out of the Country."   I question whether
any act taken by the extra person is valid.

A niggling little thought at the back of my head says that "fiduciaries
can't delegate their duties."  I imagine that the Co-PR could appointed
someone to act on her behalf while wearing her hat as a beneficiary but not
while wearing her hat as the co-PR.  Anyone have this come up and reached
any conclusions?  

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