[WSBAPT] Rejected creditor's claim and sue PR

[Eric Nelsen]

I agree, the attorney doesn't have a valid claim against the Estate.

Re procedure, if he intends to pursue it, he needs to file a civil lawsuit against the Estate under a separate case caption. Regrettably, I don't know of any published authority, though.

See Estate of Berry, 72095-3-I (unpublished, Div. 1, August 10, 2015). Creditor claim was rejected and the creditor timely filed a TEDRA suit under the probate case caption. The Commissioner dismissed based on improper procedure - the suit should have been an ordinary civil suit, and filed under its own caption. (Dismissal under these circumstances meant that the creditor had now missed its 30 day window to file the civil suit.)

The Court of Appeals reversed, holding that while it is indeed correct for a rejected claimant to file a separate civil action and not a TEDRA action, the creditor had substantially complied with the intent of the statutes despite the procedural error, no prejudice had accrued to the estate, and therefore dismissal was improper as an elevation of form over substance.

Regarding attorney fees, the same case appears to apply the TEDRA discretionary attorney fee statute, at least under those facts. I have personal reservations about the scope of that statute; I find it a little odd that it should be interpreted to - essentially - automatically import a discretionary attorney fee provision into legal actions of any and every kind, simply because one of the parties happens to be the estate of a decedent. But so far, I have not seen case law limiting its application.

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 Dalynne Singleton
Sent: Friday, October 30, 2015 11:41 AM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Rejected creditor's claim and sue PR

I rejected a creditor's claim and provided the rejection to the creditor.
The statute says - must sue Administrator within 30 days.

My question is this:  Would this be a suit filed within the probate in the form of TEDRA?  If yes, then fees/costs for defending against creditor would be awarded to the Administrator?

I anticipate this creditor who is an attorney of the decedent's father to claim fees incurred by the father to attempt to settle on behalf of the deceased son.  Problem with claim is father/attorney did not open Estate of deceased son and father was felon so not eligible to serve as Administration.  I was hired by mother of deceased son to open probate, appoint her as Administrator and settle wrongful death and tortfeasor claims, which I did.  Now father's attorney wants fees for work he did before Estate was opened - claiming 1/3 of one of the settlements with tortfeasor's insurer.  My argument against claim is (1) he did not represent Estate and did not have authority to make claim/settle; (2) his fees should be paid by his client, father.  His client was not the Estate.  This attorney has created more work in the Estate defending his claims, which the mother has been paying my fees.

My research says he did not incur fees on behalf of the Estate so they should not be paid by the Estate.


Dalynne Singleton
[SingletonLawGD27aR04aP02ZL-Johnson4a_mdm]
3215 NW Lowell Street, #161
Silverdale, WA  98383
Phone: 360-329-4079
Fax:     360-443-1259
E-mail: dalynne at singletonlawgroup.net<mailto:dalynne at singletonlawgroup.net>
Web:    www.singletonlawgroup.net<http://www.singletonlawgroup.net/>

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