[WSBAPT] Rejected creditor's claim and sue PR

Fri Oct 30 16:02:08 PDT 2015

A creditor's claim is only relevant in respect of debts of a decedent. It
seems from the facts below that a son was killed, and the claim relates to
attempts to get money owing as a consequence of that death. Recovery for
wrongful death, and attendant costs, is not decedent's debt. Without going
into whether the attorney attempting to settle such claim for wrongful death
is entitled to compensation for his efforts, the claim is not a debt of the
decedent and therefore not a proper subject for a creditor's claim. Any
claim post-mortem against the estate - rather than an obligation of the
decedent - is neither subject to the 11.40-11.42 claims procedures nor to
the 11.40-11.42 limitations periods. If the claim is to be made in equity
(e.g., in quantum meruit), the applicable limitations period, if I recall
correctly, would be the general 3-year period. Since the suit would be
against the estate, 11.96A would apply.

My 2 cents. 

S  

From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Friday, October 30, 2015 12:39 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Rejected creditor's claim and sue PR

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See Estate of Berry, 72095-3-I (unpublished, Div. 1, August 10, 2015).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>
[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

3215 NW Lowell Street, #161

Silverdale, WA  98383

Phone: 360-329-4079

Fax:     360-443-1259

E-mail:  <mailto:dalynne at singletonlawgroup.net>
dalynne at singletonlawgroup.net

Web:     <http://www.singletonlawgroup.net/> www.singletonlawgroup.net

LICENSED IN WASHINGTON AND OREGON

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