[WSBAPT] PR Delegate Duties??

Tue Dec 22 14:31:27 PST 2015

I thought I replied to this, but don't see it in the chain/thread.

I don't think a co-PR can delegate duties quite so easily.  Of course it
has to do with non-intervention powers and whether the Will references (I
think) the trust statute, but see below:
RCW 11.28.040
Procedure during minority or absence of executor.

If the executor be a minor or absent from the state, letters of
administration with the will annexed shall be granted, during the time of
such minority or absence, to some other person unless there be another
executor who shall accept the trust, in which case the estate shall be
administered by such other executor until the disqualification shall be
removed, when such minor, having arrived at full age, or such absentee,
having returned, shall be admitted as joint executor with the former,
provided a nonresident of this state may qualify as provided in RCW
11.36.010 <http://app.leg.wa.gov/RCW/default.aspx?cite=11.36.010>.

On Tue, Dec 22, 2015 at 2:17 PM, Paul Neumiller <pneumiller at hotmail.com>
wrote:

> 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
> www.cairn-law.com
>
>
>
>
>
> *From:* wsbapt-bounces at lists.wsbarppt.com [
> mailto:wsbapt-bounces at lists.wsbarppt.com
> <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>
> *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
>
> [image:
> http://www.eisenhowerlaw.com/sites/www.eisenhowerlaw.com/themes/eisenhower/20150213_logo.png]
>
> ESTATE PLANNING & PROBATE
>
> 1200 Wells Fargo Plaza | 1201 Pacific Avenue | Tacoma, WA 98402
> phone 253.572.4500 | fax 253.272.5732 | www.eisenhowerlaw.com
>
>
>
> *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:* Monday, December 21, 2015 9:47 AM
> *To:* 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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