[WSBAPT] PR Delegate Duties??

Tue Dec 22 16:43:29 PST 2015

This has been interesting.
I have a case where a named PR is declining to act as PR.  I thought I would use these statutes to add a delegation along with his declination to serve, delegating who should be appointed.  This discussion has been delegation by an appointed PR.

My first thought was that until one is appointed as Executor, you have nothing to delegate.  That is probably the case, however, that could lead a named PR to be appointed and then he/she could delegate everything to be done by another.  This seems like form over substance, and it would be better just to let him delegate a PR at the get go.

However, I suppose that the form over substance argument prevails and I should just have the, in this case a son, be appointed as administrator with will annexed.

Anyone have a different take?

Josh

Joshua F. Grant, PS
Attorney at Law
P. O. Box 619
Wilbur, WA 99185
tel 509 647 5578
fax 509 647 2734

From: John Creahan 
Sent: Tuesday, December 22, 2015 4:14 PM
To: WSBA Probate & Trust Listserv 
Subject: Re: [WSBAPT] PR Delegate Duties??

Paul,

You raise a good point about the statute. I don’t have any particular insight, but it seems to me that the power to delegate duties with regard to estate property (valuing assets for a non-pro rate distribution, for instance) would arguably be a power that relates to the estate property.

If your client is happy, I would recommend that the delegator ratify the delegatee’s actions to protect a later claim that the delegatee’s actions were ultra vires.

John

John Creahan

206-621-5848
www.cairn-law.com

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Tuesday, December 22, 2015 2:18 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] PR Delegate Duties??

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] 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

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] 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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