[WSBAPT] Non-resident probate

Tue Nov 1 09:09:35 PDT 2016

See In re Estate of Tolson, 89 Wn.App. 21, 31-32, 947 P.2d 1242 (1997), for the discussion re primary/ancillary; it also discusses full faith and credit effects of determination of domicile in one jurisdiction over another. If the financial institutions will abide by a WA order, then maybe you could do it here, but I think there's a risk that someone could open a competing probate in AZ and you'd end up in a dispute over jurisdiction. Even if you ultimately won (it's not automatic that the WA probate would be dismissed if started first), it could complicate things and add expense.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

Please Note that We Have Moved. We have moved our Seattle office to Mount Baker Ridge (a small commercial community just above the I-90 tunnel). Our new address is 1417 31st Avenue South, Seattle WA 98144. All other contact information remains the same.

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Adria Vondra
Sent: Monday, October 31, 2016 5:38 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Non-resident probate

This is really helpful. Almost all of the property is in financial institutions and it's significant. The decedent's ex-stepkids are still named in the will as sharing equally with his kids (all adults), but he had an appointment scheduled to change that next week, but he died unexpectedly last week. I expect the kids to contest it.

Thanks,
Adria

On Oct 31, 2016, at 5:17 PM, Eric Nelsen <Eric at sayrelawoffices.com<mailto:Eric at sayrelawoffices.com>> wrote:
Having done some research recently on almost the same issue, I think the main question in determining jurisdiction is, what state contains the most assets that need administration. If there is little or no property anywhere, but for some reason a probate is still necessary, the domicile state of the decedent is generally deferred to by other states.

The national case law says that there is no legal distinction between an ancillary probate and any other probate; the PRs in different states have no duties to each other and each have the full powers and duties of a PR.

Traditionally the decedent's domicile (not residence) determines the "primary" locus of jurisdiction. Property located in other states can be handled by the domiciliary probate if the court's powers extend out-of-state in that respect. That does not work for real estate, which must be handled by a probate (often called ancillary) in the state in which it is situated. But the primary/ancillary distinction doesn't really determine anything; it's just a way of thinking about probates in multiple states, and which one feels "primary."

Keep in mind also that probate jurisdiction is in rem, not in personam--it adjudicates ownership and distribution of property, and does not impose liability on individuals.

Having read all this case law recently, I am more or less convinced that RCW 11.96A.040(1)(c) means that the court can exercise jurisdiction over property belonging to a decedent who is not a Washington resident and who dies outside of Washington – but the catch is, some property must be subject to Washington jurisdiction, either by being located in the state or being in the hands of a financial institution that is willing to obey a Washington court order.

All of which is a long-winded way to say that I agree with Heather, and with Mike's idea about "minimum contacts." It is not a minimum contacts analysis in the same way that is done for determining personal jurisdiction over a defendant, but the probate court does need some minimum amount of property of the decedent upon which to act. Otherwise a probate would be useless.

In this case, it sounds like there is property to fight over. If the most property of value is located in Arizona, then you almost certainly will want probate to be opened in Arizona because you want that court to have jurisdictional power to dispose of the property. If the Will was executed in Washington, then the Arizona court might apply Washington law to determine that the Will is or is not valid – but I still think Arizona jurisdiction makes the most sense.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

Please Note that We Have Moved. We have moved our Seattle office to Mount Baker Ridge (a small commercial community just above the I-90 tunnel). Our new address is 1417 31st Avenue South, Seattle WA 98144. All other contact information remains the same.

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Adria Vondra
Sent: Monday, October 31, 2016 4:23 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Non-resident probate

This is the provision I saw as well - there just isnt anything in the RCW explaining what it means really!

On Mon, Oct 31, 2016 at 4:15 PM, Mike Winslow <mike at winslegal.com<mailto:mike at winslegal.com>> wrote:
Well, this is interesting….. See yellow highlight. I would expect that there still has to be some kind of minimum contacts requirements for a Wa court to accept for probate a will of a non-resident; Such as personal property physically located within the state of Wa, although the Probate Desk book says nothing on the point. if it would be more convenient to probate in Wa and there is physical property here, arguably the probate could be filed here under the provisions of section (c).
RCW 11.96A.040
Original jurisdiction in probate and trust matters—Powers of court.
(1) The superior court of every county has original subject matter jurisdiction over the probate of wills and the administration of estates of incapacitated, missing, and deceased individuals in all instances, including without limitation:
(a) When a resident of the state dies;
(b) When a nonresident of the state dies in the state; or
(c) When a nonresident of the state dies outside the state.
(2) The superior court of every county has original subject matter jurisdiction over trusts and all matters relating to trusts.
(3) The superior courts may: Probate or refuse to probate wills, appoint personal representatives, administer and settle the affairs and the estates of incapacitated, missing, or deceased individuals including but not limited to decedents' nonprobate assets; administer and settle matters that relate to nonprobate assets and arise under chapter 11.18<http://app.leg.wa.gov/RCW/default.aspx?cite=11.18> or 11.42<http://app.leg.wa.gov/RCW/default.aspx?cite=11.42> RCW; administer and settle all matters relating to trusts; administer and settle matters that relate to powers of attorney; award processes and cause to come before them all persons whom the courts deem it necessary to examine; order and cause to be issued all such writs and any other orders as are proper or necessary; and do all other things proper or incident to the exercise of jurisdiction under this section.
(4) The subject matter jurisdiction of the superior court applies without regard to venue. A proceeding or action by or before a superior court is not defective or invalid because of the selected venue if the court has jurisdiction of the subject matter of the action.

Michael A. Winslow
1204 Cleveland Ave.
Mount Vernon, WA 98273
Ph. 360-336-3321<tel:360-336-3321>
Em. Mike at winslegal.com<mailto:Mike at winslegal.com>

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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>] On Behalf Of Heather deVrieze
Sent: Monday, October 31, 2016 1:40 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Non-resident probate

Two main factors are where the decedent was domiciled at time of death, and where the assets are.
If the answer to either of those is Washington State, you can likely open probate in any county in the state. Otherwise, it needs to be Arizona.

Heather S. de Vrieze
Attorney-at-Law
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3909 California Avenue SW
Seattle, WA 98116-3705
(206)938-5500<tel:%28206%29938-5500>
heatherd at westseattlelaw.com<mailto:heatherd at westseattlelaw.com>
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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Adria Vondra
Sent: Monday, October 31, 2016 1:22 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Non-resident probate

I just want to verify whether a probate can be opened in WA for a resident of Arizona who died in Arizona.  The will was written in WA and all beneficiaries live here.  I have received conflicting advice and this is for a family member.  Thanks!

--
Adria Vondra
Attorney at Law
Vondra Law Firm, PLLC
15600 Redmond Way, Ste 201
Redmond, WA  98052
avondra at vondralawfirm.com<mailto:avondra at vondralawfirm.com>

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--
Adria Vondra
Attorney at Law
Vondra Law Firm, PLLC
15600 Redmond Way, Ste 201
Redmond, WA  98052
avondra at vondralawfirm.com<mailto:avondra at vondralawfirm.com>

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