[WSBAPT] Life insurance company requires parent of minors to be appointed guardian (Personal Jurisdiction?)

Tue May 19 08:49:24 PDT 2015

Jill's procedure seems good to me under the statute, since as near as I can tell, TEDRA procedure doesn't appear to require anything more than mailing notice (or the Summons) to obtain personal jurisdiction. Under Jill's procedure, I'd happily argue that the order is effective and the court has personal jurisdiction over all persons/entities given notice.

(This is really a bit off topic on the original thread.) But I do question whether, if challenged, RCW 11.96A.110 would meet constitutional procedural due process requirements. Certainly it's weaker service compared to, say the requirements for out-of-state service under  the long-arm statutes RCW 4.28.180 and .185<http://app.leg.wa.gov/rcw/default.aspx?cite=4.28&full=true#4.28.180>; or even CR 4(d)(4)<http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=CR&ruleid=supcr04> under which one must first obtain a court order before being allowed to serve by mail, and then only if it can be shown that service by mail is just as likely to provide meaningful notice as service by publication. In all those cases, parties must be given 60 or 90 days to respond, and TEDRA only requires 20, plus mailing is the basic procedure, not a stopgap method where personal service of process is not possible for some reason.

But that's all hypothetical at the moment. So far as I know, no one has yet challenged service by mail under RCW 11.96A.110 on due process grounds.

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 Jill H. Sasser
Sent: Monday, May 18, 2015 5:24 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Life insurance company requires parent of minors to be appointed guardian (Personal Jurisdiction?)

Great points Doug and Eric. I would appreciate hearing thoughts on Eric’s comments below, but it was my understanding that the TEDRA notice system is proper to establish jurisdiction.  I will see if I can find that case or authority.  See also 11.96A.040(3) which addresses nonprobate assets, 11.96A.090, 11.96A.100 and 11.96A.110, which discuss procedural issues.

Here is more detail on how I have used the TEDRA process to avoid a guardianship and establish UTMA accounts, when it seemed appropriate to do so: I have used the TEDRA Summons, along with a notice of hearing, plus a TEDRA petition to (1) establish the UTMA account; (2) appoint a custodian; and (3) direct the holder of the asset(s) (usually a life insurance company) to distribute to the custodian.  I don’t use it in cases where a guardianship seems to be more appropriate, either because it seems more restriction is needed, or because of the size of the assets, or other reasons.  The UTMA statutes do not require a bond, but we have usually asked for a bond, or for restriction of assets, unless it seems absolutely clear that no protections are needed, and in those cases, I have asked the court to review those issues, and waive restrictions.  At times, I have had a GAL appointed, and other times, asked the court to waive the appointment of a GAL, depending on the situation.

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, May 18, 2015 4:57 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Life insurance company requires parent of minors to be appointed guardian (Personal Jurisdiction?)

Doug--I agree with you, but have a question that I don't think I've seen answered in case law yet.

Is the old citation system supplanted by TEDRA except for what remnants specifically persist in statutes (such as RCW 11.68.070<http://app.leg.wa.gov/rcw/default.aspx?cite=11.68.070>)--and the big issue: Is the TEDRA notice-by-mail procedure under RCW 11.96A.110 truly a constitutionally valid method of establishing personal jurisdiction over parties? As I read TEDRA, even the initial Summons of a judicial proceeding does not require personal service of process--just mailing via RCW 11.96A.110. And recall that TEDRA proceedings can be full trials of all issues of fact and law at the first hearing, at the option of the judge. And attorney fees can be awarded for any party, against any party.

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 Doug Schafer
Sent: Monday, May 18, 2015 4:32 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Life insurance company requires parent of minors to be appointed guardian (Personal Jurisdiction?)

I'm not defending any insurance company or bank, but I suggest we keep in mind Civil Procedure 101 -- mailing or personally serving a notice of a hearing does not give the court personal jurisdiction over a non-party (one that has not sought judicial relief, formally appeared as a party, or been served with process).  So if an order directs that the non-party act in some manner, that order is void for lack of personal jurisdiction over the non-party.  I recognize that an insurance company or bank may choose to act as directed in some court order, however it could just as well ignore the order until it becomes subject to the jurisdiction of the issuing court.  That is accomplished by serving the non-party with a citation (that is the functional equivalent of a summons) or possibly with an order to show cause that directs them to appear and respond to some motion/petition.

Doug Schafer, in Tacoma
On 5/18/2015 3:28 PM, Jill H. Sasser wrote:
I have done what Marcus suggested below, and have never had a problem.  I think that the insurance companies do not want to read and interpret laws, but they are willing to comply with court orders that appoint custodians for UTMAs, or appoint trustees, or appoint guardians.  I do notice the insurance company, and my order includes language that directs the insurance company to distribute to the custodian.

Jill H. Sasser | Attorney at Law

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Marcus Fry
Sent: Monday, May 18, 2015 12:57 PM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] Life insurance company requires parent of minors to be appointed guardian

I have got the push back, but have sent them the UTMA statute and it worked just fine.  Why doesn’t the PR simply petition for an order directing insurance co. to distribute to custodian FBO child under UTMA and serve notice to insurance co. for hearing on the petition.  Let insurance company show up and argue that a gship is necessary.  One could even use TEDRA if they wanted.

Marcus J. Fry
Lyon, Weigand & Gustafson, P.S.

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