[WSBAPT] Decedent's Estate Might be Sued

[Eric Nelsen]

Plaintiff in the auto accident would only want to sue if the policy coverage were insufficient to fully compensate for Plaintiff's injuries, AND the available un-/underinsured motorist coverage wasn't enough, AND the decedent had enough assets to make it worthwhile.

If Plaintiff wants to sue, would have to (a) have an open probate to sue, (b) timely file a creditor claim, (c) force rejection of the claim, and (d) timely file suit within 30 days after rejection of the claim, and then (d) serve the lawsuit on the PR of the Estate. All of which (except service of process) would have to be done within 24 months of date of death of deceased defendant. Which is a trap for Plaintiff if they're thinking of the 3-year S/L for a personal injury action; if they wait more than 2 years, they're barred. (But not barred from recovering from insurance policy--see RCW 11.40.060--just recovering from the Estate.)

Only valid way to serve the lawsuit is on the PR of the Estate. Service on insurance company is not valid. Service on husband is valid as to him, but not as to decedent if he's not the PR in a pending probate. (And I don't think it's valid as service on the "marital community" because the community no longer exists.)

If there is no probate, creditor would have to open one in order to have someone to serve. And as you say, they'd have to give notice of application to the husband (RCW 11.28.131). Husband does have a statutory right to administer community property (RCW 11.28.030), but it's deemed waived if not exercised within 40 days of DOD. But there's a Will, and I'm guessing Husband is named as Executor. So if he gets notice of application for appointment of administrator of the Estate, he could intervene by applying to be Executor under the Will instead--and that will beat any administration.

If you want to try the creditor process on the plaintiff, then start the probate, publish notice to creditors, and three months after publication, mail a Notice to Creditors to the plaintiff and plaintiff's insurance company. That gives them essentially 30 days to file a creditor claim, or they're barred.

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 amanda_wilson at olypenlawoffices.com
Sent: Monday, March 23, 2015 1:25 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Decedent's Estate Might be Sued


This is my first time encountering this, though I am sure it will be far from the last.



Husband is coming in today. His wife died recently in a car accident where she is at fault. They have Wills and a Community Property Agreement. They have not been sued, as yet.



The husband will want to not open a Probate, because he has a Community Property Agreement. I just need to know if there is any reason we have to open a Probate or if it would be advantageous to do so for any reason.



One thought comes to mind (love it when that happens): If the other party sues, they will either serve the husband or the insurance company if the lawyers at the insurance company are representing him (am I right?), but if they are suing her estate, they might open a Probate from her estate as a creditor (am I right?), and then the husband would still be PR over all of their community property which is everything (am I right?). Also, I don't think there is anyway to make this "known creditor" follow the thirty day special notice rule, right?



Any discussion from the group would be appreciated.



Amanda



Amanda M. Wilson, esq.



Olympic Peninsula Law Offices, LLC

219 W Patison St.

Port Hadlock, WA 98339





(360)437-4172 office

(206)331-7851 cell phone



"I've learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel." ~ Maya Angelou
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