[WSBAPT] Decedent's Estate Might be Sued

Tue Mar 24 07:34:48 PDT 2015

In my experience, the appointment of defense counsel by the insurance company only comes AFTER the opening of probate since the decedent is the insured.  The insurance company does not provide for opening the probate for their own insured decedent.  Many times the statute of limitations for the tort claims is running and it is a scramble by the injured party’s attorney to open the probate, get the Administrator appointed, then serve the Administrator with the S/Complaint and a Creditor’s Claim.  Since you represent the husband of the tortfeasor, nothing may happen until close to 3 years after the collision.  If that time is 2 years post death but within 3 year SOL for tort, then the injured party will be limited to the insurance policy alone.

Dalynne Singleton

 <http://www.singletonjorgensen.com/> 

1541 Piperberry Way SE, Suite 105

Port Orchard, WA  98366

Phone: 360-329-4079

Fax:     360-443-1259

E-mail:  <mailto:lara at singletonjorgensen.com> dalynne at singletonjorgensen.com

Web:    www.singletonjorgensen.com <http://www.singletonjorgensen.com/> 

LICENSED IN WASHINGTON AND OREGON

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Rob Wilson-Hoss
Sent: Monday, March 23, 2015 3:39 PM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] Decedent's Estate Might be Sued

The time limitations for presenting claims under this chapter do not accrue to the benefit of any liability or casualty insurer. Claims against the decedent or the decedent's marital community that can be fully satisfied by applicable insurance coverage or proceeds need not be presented within the time limitation of RCW 11.40.051, but the amount of recovery cannot exceed the amount of the insurance. The claims may at any time be presented as provided in RCW 11.40.070, subject to the otherwise relevant statutes of limitations, and do not constitute a cloud, lien, or encumbrance upon the title to the decedent's probate or nonprobate assets nor delay or prevent the conclusion of probate proceedings or the transfer or distribution of assets of the estate. This section does not serve to extend any otherwise relevant statutes of limitations.

Wash. Rev. Code Ann. § 11.40.060 (West)

This gets the innocent victim the benefit of the wife's policy and the victim's' own UIM, along with PIP and so on. If that is not enough, an 11.40.051 claim can be filed, which can reach assets of the insured, including all of the probated or nonprobated assets. The 4-month, 30-day analysis of Eric, below, then comes into play. Your client should already have reported this to his insurance company which will deal with it, including, if needed, assigning a lawyer to work for your client on the claim. 

Robert D. Wilson-Hoss 
Hoss & Wilson-Hoss, LLP 
236 West Birch Street 
Shelton, WA 98584 
360 426-2999

www.hossandwilson-hoss.com
rob at hctc.com

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From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>  [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Monday, March 23, 2015 2:58 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Decedent's Estate Might be Sued

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>  [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of amanda_wilson at olypenlawoffices.com <mailto: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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