[WSBAPT] Non-resident probate

Tue Nov 1 09:34:21 PDT 2016

I have a slightly different take. Real property, as Eric says, has to be probated in the state where it is located. And what he says about ancillary probates is very accurate. But generally, as to personal property of a decedent who dies out of state and and who is a nonresident, the statute does not require any particular contacts. In particular, unless someone takes issue, personal property can be probated here. So if everyone wants to probate here, although the personal property is in another state, they can. A problem can arise if some one of the heirs does not agree, and wants to force an initial filing or a change of jurisdiction in the direction of the state that the others don’t want. But if all the heirs agree, personal property of a decedent who died out of state and who was a resident out of state can be probated here. I don’t think that a probate court has the ability to refuse to probate the estate. I don’t know what would happen if a probate were entered here, and then one of the heirs moved for a transfer of jurisdiction, when it just involved personal property out of state. 

Ultimately, the question may have to be answered by the law of the other state. If there is personal property in another state, Washington courts can administer it, under the statute  The statute doesn’t also say, but only if there is some personal property in Washington, or most of the personal property is in Washington. But in the other state, there may be a statute that says that that state does not allow a different state to administer on personal property in that state. I doubt that, because of the comity cases.

I would try to get an agreement from all the heirs for a probate in Washington, under 11.96A, and file it with the probate, if you can. 

Rob

Robert D. Wilson-Hoss 
Hoss & Wilson-Hoss, LLP 
236 West Birch Street 
Shelton, WA 98584 
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rob at hctc.com

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Monday, October 31, 2016 5:17 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Non-resident probate

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

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From: 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> 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

Em. Mike at winslegal.com

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From: 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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From: 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>
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

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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

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