[WSBAPT] Need advice! WA Probate- will located in TX
Sarah Jael Dion
sarah at dionlaw.com
Fri Feb 19 19:44:42 PST 2016
Doug-
Thank you so much for the very detailed answer. I so appreciate you taking the time to respond! This answers several questions I had. So kind of you- thanks.
Sarah
> On Feb 19, 2016, at 7:05 PM, Douglas Bratt <djbratt at mbavancouverlaw.com> wrote:
>
> Hello:
>
> Those folks who are suggesting that the Texas attorney should be sent a $240.00 check so that he/she can “file the will” and “get a case number” are not recognizing that the Clerk’s Office won’t simply open up the actual probate file simply because it is presented with a Will and a $240.00 check. To open any non-criminal case usually requires a Summons and Complaint in the case of a civil case, the filing of a Petition for Admission of Will to Probate or a Petition for Letters of Administration in a probate case, the filing of a Petition for Guardianship in that sort of case, or a Petition for Termination of Parent-Child Relationship in the case of a filing to terminate parental rights, preparatory for an adoption to take place.
>
> Just as the mere filing of a Consent to Termination of Parent-Child Relationship signed by a Birth Parent, along with the $260 filing fee, without the filing of a Petition for Termination of Parent-Child Relationship, would not be accepted by the Clerk of Court, I think that trying to file a Will as a full-blown probate case, simply by the use of a $240.00 filing fee, would not pass muster, and would probably be refused by the Clerk. So, in my opinion, sending a $240.00 check to the Texas attorney, for use in filing the Will, will simply achieve a return mailing of the Will and the $240.00 check back to the Texas attorney by the Court Clerk here in Washington.
>
> Fortunately, however, we actually have a statute that allows for the filing of a Will, for a $20.00 filing fee, at any time. Some people want to simply have their original Will in the possession of the Clerk for safe-keeping, while others who actually possess an original will of a Deceased person, are required, by Washington statute, to file such will within 30 days of becoming aware of the testator/testatrix’s death.
>
> When the “Will Only” box is checked on the Case Information Sheet (attached) that must accompany filings with the Court Clerk, it simply calls for a $20.00 filing fee. In my experience, at our local Clerk’s Office, if the Will is for a person who is still alive, that is all that is required. When the Clerk is told that the Will is for someone who is deceased, the person filing the Will is usually asked for the Date of Death of the individual, and that date is hand-written on the Case Cover Sheet, as part of the filing. In either case, the Clerk files the case as a case in Category 4, but the “Will Only” filing does not bear a file number in the regular sequence of filed probate cases. Rather, it still lists the year, and the category of filing (“4”), but the numbering (at least in Clark County) is based upon a different sequence of filing numbers.
>
> By way of example, the second attachment to this email is a sheet that shows the number that was assigned to a “Will Only” filing in May of 2015, here in Clark County (top part of second attachment). Notice that the number “1” appears as the first number after the “15-4-“ portion of the file number. Then the “0122” represents, I believe, the fact that the will in question was the 122nd Will filed in our Clerk’s Office through May 14, 2015.
>
> Later, when I filed the actual probate case involving the Will, in November of 2015, and paid the $240.00 filing fee along with the filing of my Petition for Probate of Will, the number that was assigned to the new probate filing fell into the sequence assigned to actual probate cases in the regular course of filing. (The caption in this actual probate case, which includes the newly-assigned case number, is also included on the second sheet attached to this email, which shows, first, the Clerk’s stamp and the file number for the “Will Only” filing and, second, the Clerk’s stamp and file number for the actual probate filing.) In this case, the probate case number (15-4-01345-0) means that this probate case was the 1,345th probate case filed in Clark County in 2015.
>
> So, here is my advice regarding the Will located in Texas problem. The sum of $20.00 is a small price to pay to get the Will into the proper repository, per Washington law, and, apparently, per Texas law. After the Texas attorney has mailed the Texas Will to the local Clerk’s Office, with your $20.00 check, you can file your Petition for Probate of Will and state the following, after identifying the Petitioner, the Decedent, his/her heirs, etc.:
>
> “Decedent died testate, having executed his/her Last Will and Testament, dated December 26, 2012, in the presence of JOHN ROE and JANE ROE, competent witnesses. The original Last Will and Testament of Decedent was filed with the Clerk of Court on May 14, 2015, under Clark County Cause No. 15-4-10122-7.” (Again, this language was taken off the actual docs filed in a sequence of filing, starting with a Will-Only filing, followed by the probate filing a number of months thereafter.)
>
> In my actual probate case, upon filing the probate in November, 2015, I merely informed the Clerk that I was asking for the admission of a Will already filed with the Clerk under Cause No. 15-4-10122-7, and the Clerk thanked me, saying that they would find the already-filed Will and add it to the new probate file. I took my conformed copy of the Will that I had obtained in May, 2015 and went on to Ex-Parte to get the Order Admitting Will to Probate signed by the Commissioner.
>
> An alternative to the above, it seems to me, is to file a Petition for Probate of Will, and state in the Petition that the original is in Texas, and that it is expected that it will be filed shortly. Then, ask the Judge/Commissioner to sign an Order which states:
>
> “This court has jurisdiction over the Estate of Decedent, the Decedent having died in the State of Washington, and having left real and/or personal property in the State of Washington. The court understands that Decedent’s original signed Will is in the possession of Harry (or Harriet) Attorney of Some-where-in, Texas. It is requested that Mr./Ms. Attorney forward the original Will to the Clerk of this Court, at Such-and-Such-an-Address, Such-and-Such-A-City, Washington, to be filed under Case Number 16-4-xxxxx-x, which is the file number established for this probate case involving the Estate of Decedent, which is to be administered by the Personal Representative, per the terms of Decedent’s Will.”
>
> Then, you simply ask the Texas Attorney to inform you when he/she has sent the will to the Clerk (no filing fee required, since you have already paid it by opening the Estate with the Petition for Admission of Will to Probate and paying the $240.00.) You then monitor the filings under the assigned probate number, online (we can do that in Clark County and I cannot imagine that King County is any different). When the Will arrives, you then ask for entry of a formal order for admission of the Will to probate.
>
> Good Luck.
>
> Regards,
>
> Doug Bratt
>
>
> Douglas J. Bratt
> Lawyer
>
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> From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Sarah Jael Dion
> Sent: Friday, February 19, 2016 4:53 PM
> To: WSBA Probate & Trust Listserv
> Subject: Re: [WSBAPT] Need advice! WA Probate- will located in TX
>
> Thank you so much, Paul Neumiller, Heather deVrieze, Eric Nelsen, John Sullivan and Karin Treadwell. This listserv is amazing. :)
>
> It seems like the most graceful way to proceed would be to ask the TX attorney to file the will with the Clerk of Court here, and get a case number. To get a case #, I assume he would need the $240 filing fee, as Eric suggests, rather than just the $20 fee to file a will. Then I can open probate under that case number, indicating that the original will has already been filed, as Karin says, and proceed from there. Perhaps I should just bounce this off the clerk’s office.
>
> Someone else suggested I might try to open probate with a declaration from the attorney in TX stating that the copy of the will I have is a true and correct copy of the original that is in his possession. The idea would be to ask to go forward without the original, or in the alternative, to open probate without it, but grant no powers until the TX attorney files the original with the court.
>
> Sarah Jael Dion
>
> Dion Law PLLC
> 206-550-4005
> sarah at dionlaw.com
> dionlaw.com
>
> This message is private or privileged. If you are not the person for whom this message is intended, please notify me immediately and delete the message. Please do not copy or send this message to anyone else.
>
>
>
>
>
> On Feb 19, 2016, at 4:29 PM, Karin Treadwell <Karin at sayrelawoffices.com> wrote:
>
> Yes, the Ex Parte Cover Sheet specifically asks if the original Will has already been filed. If so, you can check the box so that the Will will be delivered by the Clerk to the Commissioner.
>
> Karin
> Karin S. Treadwell
> Sayre Law Offices
> 1320 University St
> Seattle WA 98101
> (206) 625-0092
>
> From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
> Sent: Friday, February 19, 2016 3:32 PM
> To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> Subject: Re: [WSBAPT] Need advice! WA Probate- will located in TX
>
> I agree with Paul. You might even expedite it by offering to send a check to the Texas attorney, payable to the King County Superior Court Clerk for $240, that would allow the Texas attorney to mail it off without expense beyond postage. Then you will have a case number and you can proceed; just tell the court that the original Will is already in the court file.
>
> I wonder, is it still possible to ask the clerk to pull an original file and send it up to ex parte?
>
> 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 Paul Neumiller
> Sent: Friday, February 19, 2016 3:08 PM
> To: 'WSBA Probate & Trust Listserv'
> Subject: Re: [WSBAPT] Need advice! WA Probate- will located in TX
>
> Why not have the TX attorney file the Will for $20.00 first and then you open probate using that file number. I had a situation where we searched for the original Will and discovered the sister had already filed it with the local superior court. We then just opened probate using the file number given to the Will.
>
>
> From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Sarah Jael Dion
> Sent: Friday, February 19, 2016 2:47 PM
> To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> Subject: [WSBAPT] Need advice! WA Probate- will located in TX
>
> Hello friends-
>
> I haven’t seen this before, but am hoping someone here has! I would so appreciate any thoughts on the best way to handle...
>
> I’m in King County, representing the PR son. Decedent mother was a WA resident who used to live in TX.
>
> Her will was drafted in TX when she lived there, and remains in a vault in a law firm in TX.
>
> TX attorney says he can’t send me (or the PR) the original will because of a provision in Texas Estates Code. According to this attorney, his only option is to send it to the Clerk of the Probate Court here.
>
> On first glance, it appears he is right…
>
> Sec. 252.201. WILL DELIVERY. On receiving notice of a testator's death, the person who has custody of the testator's will shall deliver the will to the clerk of the court that has jurisdiction of the testator's estate.
>
> I have never tried to open probate without the original will. Seems like I have two options: (1) try to open probate without the original will, and then have the TX attorney file it by mail into the case; or (2) have the TX attorney file the will with the court here, and then open probate explaining that the court should be in possession of the original will.
>
> Thoughts? Guidance? Thank you in advance!!!
>
> Sarah Jael Dion
>
> Dion Law PLLC
> 206-550-4005
> sarah at dionlaw.com
> dionlaw.com
>
> This message is private or privileged. If you are not the person for whom this message is intended, please notify me immediately and delete the message. Please do not copy or send this message to anyone else.
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> <2016 02 19 Superior Court Case Cover Sheet.pdf>
> <2016 02 19 Clerk's Filing Numbers for Will Only and for Probate Filing.pdf>
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