[WSBAPT] FW: Another Out of Country PR issue - Answers received
Josh Grant
jgrant at accima.com
Thu Jun 30 10:17:50 PDT 2016
couldn’t open attachment
From: Russell Mikow
Sent: Wednesday, June 29, 2016 3:50 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] FW: Another Out of Country PR issue - Answers received
Thanks to everyone who answered my question. Here are the responses that I received in order of receipt:
Do the Oath in the form of a Declaration.
_________________________________________
I don’t think you can get away with a witness for an oath. The oath isn’t equivalent to “a declaration in lieu of affidavit” situation. RCW 11.28.170 requires the PR to take and subscribe an oath, before some person authorized to administer oaths. The notary is a public official that is authorized to administer oaths and is usually the most convenient.
In Washington, RCW 5.28.010 gives a list of those who may administer oaths:
Every court, judge, clerk of a court, state-certified court reporter, or notary public, is authorized to take testimony in any action, suit or proceeding, and such other persons in particular cases as authorized by law.
For foreign PRs, usually a consulate is the best bet. Maybe there are others officials near her that can administer an oath in lieu of a notary?
______________________________________________________
In my situation, we presented the court with a scanned color copy of the notarized Oath (the original was still in the mail from England). Although the fact that it was a foreign notary seal was perfectly acceptable, the fact that it was a copy was not – it had to be the original. That being said, I cannot imagine the court would accept an oath in declaration format, or one not notarized.
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I’m not sure that works. (Note: Referring to using a declaration)
RCW 11.28.170
Oath of personal representative.
Before letters testamentary or of administration are issued, each personal representative or an officer of a bank or trust company qualified to act as a personal representative, must take and subscribe an oath, before some person authorized to administer oaths, that the duties of the trust as personal representative will be performed according to law, which oath must be filed in the cause.
_______________________________________________________________
Take a look at RCW 9A.72.085 which would appear to allow a declaration, although there are exceptions which could potentially apply
Interesting. I have regularly filed PR oath’s signed in declaration form and had no problem with the judge signing the Order appointing PR, but I believe you are correct after reading those statutes. Maybe this is another statutory change that should be made to make probates more user friendly. If my litigation witness can sign a declaration, for example, in support of a motion for summary judgment, and lets assume the litigation involves a million dollar claim, then why can’t my prospective PR, who is appointed to act as such by the testator , sign a binding promise under penalty of perjury etc. to follow the law as a PR without appearing before a Notary? After all we don’t make a prospective PR promise to support and defend the constitution of the US and of the State of Washington anymore.
Note to Probate Secretary, Oaths need to be signed in front of a Notary.
____________________________________________________________
The language “This section does not apply to writings requiring an acknowledgment, depositions, oaths of office, or oaths required to be taken before a special official other than a notary public” also appears in 5.50.030. So because the oath can be taken by a notary public under 11.28.170 (some person authorized to administer oaths) then maybe a declaration will work?
______________________________________________________________
We have used Declarations of PRs for people who are in remote locations. You need to revise your order to state that Letters Testamentary will be issued upon the filing of a Declaration. We have had no trouble with this in King County.
_____________________________________________________________
I appreciate the creativity and the advisable step of getting the endorsement of the court to use a declaration in the order of appointment to accommodate a remotely located client. But can a court order waive a statutorily prescribed condition precedent to the issuance of letters? There’s not any permissive language in RCW 11.28.170 allowing for the court’s discretion to waive the requirement, like in setting the amount of the bond or substitute security. I think this is analogous to someone with a felony conviction (not vacated) being disqualified, there isn’t a work around.
As inconvenient as it might be, I think the statue is pretty clear. The statute doesn’t just say that the person appointed shall take and subscribe an oath that the duties will be performed according to law. If that is all that it said, then a substitute declaration might be allowed – and assuming the exclusions in RCW 9A.72.085(4) don’t apply.
But I think that this approach ignores the part of RCW 11.28.170 that says the oath “must” be taken and subscribed “before some person authorized to administer oaths.” A declaration under penalty of perjury is not made before another person, it is signed by the declarer alone. So, I think that you still run afoul of the plain language of the statute that requires there to be another person involved, and that other person must have a specific type of authority, i.e. to administer oaths.
______________________________________________________
Very truly yours,
ADVANCE LEGAL SERVICES, PLLC
Russell L. Mikow
8113 W. Quinault Ave., Ste. 101
Kennewick, WA 99336
(509) 851-7884
PLEASE NOTE OUR NEW ADDRESS ABOVE!
russell at alsnorthwest.com
www.alsnorthwest.com
Executive Committee Secretary, Washington Chapter, American Immigration Lawyers Association 2015-2016
This E-Mail message and any documentation accompanying this transmission may contain privileged and/or confidential information and is intended solely for the addressee(s) named above. If you are not the intended addressee/recipient, you are hereby notified that any use of, disclosure, copying, distribution, or reliance on the contents of this E-Mail information is strictly prohibited and may result in legal action against you. Please reply to the sender advising of the error in transmission and immediately delete/destroy the message and any accompanying documents. Opinions, conclusions and other information in this message that do not relate to the official business of this firm shall be understood as neither given nor endorsed by it. Although this message and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free, and no responsibility is accepted by this firm for any loss or damage in any way from its use. Thank you.
From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of pugetsoundlaw at gmail.com
Sent: Friday, June 24, 2016 12:04 PM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] Another Out of Country PR issue
I appreciate the creativity and the advisable step of getting the endorsement of the court to use a declaration in the order of appointment to accommodate a remotely located client. But can a court order waive a statutorily prescribed condition precedent to the issuance of letters? There’s not any permissive language in RCW 11.28.170 allowing for the court’s discretion to waive the requirement, like in setting the amount of the bond or substitute security. I think this is analogous to someone with a felony conviction (not vacated) being disqualified, there isn’t a work around.
As inconvenient as it might be, I think the statue is pretty clear. The statute doesn’t just say that the person appointed shall take and subscribe an oath that the duties will be performed according to law. If that is all that it said, then a substitute declaration might be allowed – and assuming the exclusions in RCW 9A.72.085(4) don’t apply.
But I think that this approach ignores the part of RCW 11.28.170 that says the oath “must” be taken and subscribed “before some person authorized to administer oaths.” A declaration under penalty of perjury is not made before another person, it is signed by the declarer alone. So, I think that you still run afoul of the plain language of the statute that requires there to be another person involved, and that other person must have a specific type of authority, i.e. to administer oaths.
Tara M. Roberts
Puget Sound Law pllc
roberts at pugetsoundlaw.com
******************************
The information contained in this email is intended as a collegial exchange of ideas, may be incorrect, and is made without warranty of accuracy of any kind. The ideas and opinions expressed in this message are offered as unresearched thoughts, may be retracted or changed without notice, and do not create any attorney-client relationship. They should not be relied upon as applicable to any particular fact situation. Thank you.
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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Marcia Mellinger
Sent: Thursday, June 23, 2016 4:06 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Another Out of Country PR issue
We have used Declarations of PRs for people who are in remote locations. You need to revise your order to state that Letters Testamentary will be issued upon the filing of a Declaration. We have had no trouble with this in King County. Best, Marcia
--------------------------------------------------------------------------------
From: jgrant at accima.com
To: wsbapt at lists.wsbarppt.com
Date: Thu, 23 Jun 2016 15:05:27 -0700
CC: secretary.jgrant at accima.com
Subject: Re: [WSBAPT] Another Out of Country PR issue
Interesting. I have regularly filed PR oath’s signed in declaration form and had no problem with the judge signing the Order appointing PR, but I believe you are correct after reading those statutes. Maybe this is another statutory change that should be made to make probates more user friendly. If my litigation witness can sign a declaration, for example, in support of a motion for summary judgment, and lets assume the litigation involves a million dollar claim, then why can’t my prospective PR, who is appointed to act as such by the testator , sign a binding promise under penalty of perjury etc. to follow the law as a PR without appearing before a Notary? After all we don’t make a prospective PR promise to support and defend the constitution of the US and of the State of Washington anymore.
Note to Probate Secretary, Oaths need to be signed in front of a Notary.
Joshua F. Grant, PS
Attorney at Law
P. O. Box 619
Wilbur, WA 99185
tel 509 647 5578
fax 509 647 2734
From: pugetsoundlaw at gmail.com
Sent: Thursday, June 23, 2016 2:31 PM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] Another Out of Country PR issue
I don’t think you can get away with a witness for an oath. The oath isn’t equivalent to “a declaration in lieu of affidavit” situation. RCW 11.28.170 requires the PR to take and subscribe an oath, before some person authorized to administer oaths. The notary is a public official that is authorized to administer oaths and is usually the most convenient.
In Washington, RCW 5.28.010 gives a list of those who may administer oaths:
Every court, judge, clerk of a court, state-certified court reporter, or notary public, is authorized to take testimony in any action, suit or proceeding, and such other persons in particular cases as authorized by law.
For foreign PRs, usually a consulate is the best bet. Maybe there are others officials near her that can administer an oath in lieu of a notary?
Tara M. Roberts
Puget Sound Law pllc
roberts at pugetsoundlaw.com
******************************
The information contained in this email is intended as a collegial exchange of ideas, may be incorrect, and is made without warranty of accuracy of any kind. The ideas and opinions expressed in this message are offered as unresearched thoughts, may be retracted or changed without notice, and do not create any attorney-client relationship. They should not be relied upon as applicable to any particular fact situation. Thank you.
******************************
From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Russell Mikow
Sent: Thursday, June 23, 2016 2:03 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Another Out of Country PR issue
Dear all:
I am preparing to file a probate on behalf of a potential PR who lives in a rural part of Mexico. We normally have the PR sign and have notarized the Oath of Personal Representative, but she is having difficulty finding a notary in her locale. Would the Oath be sufficient for RCW 11.28.1701 purposes if it is signed and witnessed (not notarized)? Any bright ideas how to address this issue? Any guidance would be greatly appreciated!
Very truly yours,
ADVANCE LEGAL SERVICES, PLLC
Russell L. Mikow
8113 W. Quinault Ave., Ste. 101
Kennewick, WA 99336
(509) 851-7884
PLEASE NOTE OUR NEW ADDRESS ABOVE!
russell at alsnorthwest.com
www.alsnorthwest.com
Executive Committee Secretary, Washington Chapter, American Immigration Lawyers Association 2015-2016
This E-Mail message and any documentation accompanying this transmission may contain privileged and/or confidential information and is intended solely for the addressee(s) named above. If you are not the intended addressee/recipient, you are hereby notified that any use of, disclosure, copying, distribution, or reliance on the contents of this E-Mail information is strictly prohibited and may result in legal action against you. Please reply to the sender advising of the error in transmission and immediately delete/destroy the message and any accompanying documents. Opinions, conclusions and other information in this message that do not relate to the official business of this firm shall be understood as neither given nor endorsed by it. Although this message and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free, and no responsibility is accepted by this firm for any loss or damage in any way from its use. Thank you.
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