[WSBAPT] Life estate in Beneficiary Deed?

Mon Jul 20 13:11:05 PDT 2015

Any thoughts about including a life estate reservation in a beneficiary on death deed?
Thanks, Marcia

From: Eric at sayrelawoffices.com
To: wsbapt at lists.wsbarppt.com
Date: Thu, 16 Jul 2015 22:03:19 +0000
Subject: Re: [WSBAPT] period of limitation omitted spouse claims againts will

Interesting! Sub (7) "contrary to law" and sub (9) "substantial justice has not been done" might work. But it brings another issue to mind for me:  Reconsideration is a civil procedure matter, not a probate administration
 matter. CR 1 confirms the scope of the rules is for "all suits of a civil nature" and probate is not a suit. Without some kind of contested proceeding having been commenced, I wonder if it even is possible to utilize CR 59 after a probate closes administratively.

>From WSBA CivPro Deskbook, Sec. 1.5:

In re Estate of Toth, 138 Wn.2d 650, 655-67, 981 P.2d 439 (1999), for example, the court discussed, without deciding, the possibility that CR 6(e) could apply to probate
 filing periods. But see Grasser v. Blakkolb, 12 Wn.App. 529, 530 P.2d 684 (1975),
review denied, 85 Wn.2d 1005 (1975) (holding that the rejection of a claim in a probate matter is not a civil suit for purpose of CR 1, which restricts the application of Superior Court Civil Rules to suits of a civil nature).

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 Tara

Sent: Thursday, July 16, 2015 1:43 PM

To: 'WSBA Probate & Trust Listserv'

Subject: Re: [WSBAPT] period of limitation omitted spouse claims againts will

The notice to the spouse is critical.  Without it, the time periods don’t start to run.  With it, they are tight.  Eric is spot on.

But we don’t have enough facts to determine whether all the scenarios under CR 59 are completely out of the ball park, Sub(7) or Sub(9) might due enough to keep a foot in the
 door.  An omitted spouse might successfully argue that a declaration of completion or decree of distribution that fails to provide his/her intestate share “is contrary to law.”  Overcoming a defense of waiver due to lack of action would be challenging, but
 not impossible.  The facts and circumstances are critical, probates can be very messy and that leaves room for creative lawyering, for the bad and the good.  Even still, it only leaves a scant few days for any hope of remedial action.

Tara M. Roberts
Puget Sound Law pllc
roberts at pugetsoundlaw.com

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From: 
wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com]
On Behalf Of Eric Nelsen

Sent: Thursday, July 16, 2015 12:26 PM

To: WSBA Probate & Trust Listserv

Subject: Re: [WSBAPT] period of limitation omitted spouse claims againts will

I agree the statutory language is mandatory, so that does raise an interesting question about who does the blame fall upon if it doesn't happen.

Everything hinges in this circumstance on notice to omitted spouse during the probate, I think. Both the fact of notice at the beginning to establish jurisdiction, and the notice at the end prior to final distribution.
 If omitted spouse didn't get Notice of Appointment in the first place, the whole probate is kaput, so let's assume that jurisdiction is established and closure is the real issue.

If you use the standard Declaration of Completion with standard Notice under
RCW 11.96A.110, The PR presumably has done the entire distribution already so the omitted spouse knows whether or not s/he has received anything. If you use the alternative
 form under 
.112, that requires giving each person notice of the expected minimum distribution due to them, so omitted spouse will get notice of how much s/he is expected to receive. Any other method involving an accounting will also give notice of the proposed distribution,
 so omitted spouse can verify before closing the estate that s/he will receive the omitted spouse share.

If the omitted spouse gets this kind of notice that s/he is NOT going to get a share, and yet fails to object to closure, then I think closure and discharge of the PR kills the potential omitted spouse claim
 and any claim for breach of fiduciary duty, by res judicata. I think there are no grounds for reconsideration under

CR 59. I wonder about appeal...I think the first defense by the PR would be waiver of the claim by failure to object prior to closing the Estate. Similar to a nonjudicial DOT foreclosure, the post-closing remedies should be very very limited. Why should
 an appeal be heard when the spouse has full notice and opportunity to be heard prior to closing the Estate, and failed to do anything.

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 Tara

Sent: Thursday, July 16, 2015 11:49 AM

To: 'WSBA Probate & Trust Listserv'

Subject: Re: [WSBAPT] period of limitation omitted spouse claims againts will

I’ll go out on a limb.  My reading of the omitted spouse statute is that the omitted spouse “must receive” a share.  There isn’t something that the spouse must do in order to
 activate this right, as opposed to the filing a petition for a family support award that has a defined procedure and time frame within which it must be affirmatively activated by the spouse or lost.  When distributing to heirs, the PR must distribute the intestate
 share to the omitted spouse and the rest according to the provisions of the will.  Of course, it would behoove the omitted spouse to get in there and assert those rights from the get go, especially if there was any question as to whether the will did in fact
 “name or provide for the spouse” and the PR was proceeding as those the omitted spouse was left out intentionally.

If a PR distributed property to other heirs that rightfully was distributed to the omitted spouse, then a claim for breach of fiduciary duty could be brought by the omitted
 spouse at any time before the discharge of that PR under RCW 11.96A.070(2).  When that time frame ends depends on when and how the PR closes the estate and is discharged, and provided that the omitted spouse received proper notice.

In King County, a motion for reconsideration should be viable for an additional 10 days after the entry of a final decree or the automatic finalization of the declaration of
 completion.  And the 30 day period for appeal actions would be counted.
But beyond that a properly served omitted spouse is probably SOL.

Tara M. Roberts
Puget Sound Law pllc
roberts at pugetsoundlaw.com

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From: 
wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com]
On Behalf Of Mike Winslow

Sent: Thursday, July 16, 2015 9:50 AM

To: WSBA RPPT Probate & Trust Discussion Forum

Subject: [WSBAPT] period of limitation omitted spouse claims againts will

Would someone direct me to the statute which states the period of limitation for an omitted spouse (marriage after date of will) to claim intestate share of an estate, as against the decedent’s will?

Michael A. Winslow
1204 Cleveland Ave.
Mount Vernon, WA 98273
Ph. 360-336-3321
Em. Mike at winslegal.com

This message is from an attorney, so it’s confidential. If you are not the intended recipient, it’s too late to stop reading this message, but you may not use it for any improper purpose. Huge Disclaimer available upon request.

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