[WSBAPT] Creditor Claim + CR25 Petition to Substitute

[Eric Nelsen]

I don't have a form for you but I want to throw a fly in your ointment, because I don't know the final answer re creditor claims and pending lawsuits.

I know the WSBA Probate Deskbook says that if you have a pending lawsuit when a defendant dies, you still have to file a creditor claim. Probate Deskbook (2005), Sec. 7.6(4).

But there is case authority that says it is not necessary. Sutton v. Hirvonen, 113 Wn.2d 1, 7 fn.1, 775 P.2d 448 (1989); citing Alexander v. Highfill, 18 Wn.2d 733, 140 P.2d 277 (1943). I have read Alexander in detail; it involves the import of statutory amendments to the creditor claim process, and appears to say that the requirement to file a claim even when there is a pending lawsuit was eliminated by the legislature in Session Laws of 1917, Chapter 156. The point was, that the creditor claim process is supposed to give notice to the PR that there is a claim against the Estate, which is redundant if the plaintiff is going to file a motion against the PR to have them substituted into the lawsuit. So the Legislature apparently eliminated the requirement in 1917, and I guess nobody noticed?

I have not seen any case law directly overruling Alexander or Sutton, but then nobody seems to cite them for this proposition either. I found one case, Martin v. Wilbert, 162 Wn.App. 90, 110 fn.4, 253 P.3d 108 (Div. 1 2011). And it's not on point; just dicta as a comment on the record below.

Petrarca v. Halligan, 83 Wn.2d 773, 522 P.2d 827 (1974), decided 30 years after Alexander and 15 years before Sutton, is often cited for its principal holding that CR 25 overrules the four-month time limit for substitution of a deceased defendant's estate in RCW 11.40.100. The record in the lower court that caused the ruling in the first place was because: the lawsuit was filed against the defendant, the defendant subsequently died, the plaintiff filed a creditor claim, the PR rejected the claim, the plaintiff filed a motion to substitute, and the PR objected because it was untimely. But there was a catch-22 in the statutes at that time, such that the deadline to file the motion for substitution expired before the PR rejected the claim. So the Petrarca court was focused on promoting the overriding authority of the Civil Rules over statutes with contrary procedural deadlines – and perhaps nobody bothered to argue or notice that the creditor claim itself was not required?

So I do not know for sure that this is still good law – but as near as I can tell, it is.

Note also that RCW 11.40.051(1) starts: "Whether or not notice is provided under RCW 11.40.020, a person having a claim against the decedent is forever barred from making a claim or commencing an action against the decedent...unless...[file a claim within time limits]."

That seems to contradict the possible meaning of RCW 11.40.010 "A person having a claim against the decedent may not maintain an action on the claim unless a personal representative has been appointed and the claimant has presented the claim as set forth in this chapter." But perhaps "maintain" in the statute is not interpreted so broadly…

Anyway. Probably the safest bet is to file a creditor claim anyway, but you give me an opportunity to throw this out to the listserv to see who bites.

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 sullaw at comcast.net
Sent: Tuesday, March 15, 2016 3:17 PM
To: Listserv, WSBA
Subject: [WSBAPT] Creditor Claim + CR25 Petition to Substitute

Listmates:

I am preparing a creditor claim for a client with respect to a pending lawsuit against a deceased defendant.

In addition to filing and serving the claim in the probate, the client is required to move the court in the pending lawsuit to substitute the PR for the defendant under CR25.

Does anyone have a form of Motion and Order they might be willing to share?

Thanks in advance.



Best regards,

John J. Sullivan<mailto:dlyons at lyonslawoffices.com>,

Attorney



Lyons | Sullivan

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Bellevue, WA 98004

425·451·2400 tel 425-451-7385 fax

www.dljslaw.com<http://www.dljslaw.com/>



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