[WSBAPT] cred claim after probate closed

[Randolph Petgrave]

Melinda,



This could be a tricky issue, and there may be some expense involved.



If the claim came in more than 2 years post death, it is automatically barred under RCW 11.40.051(1)(c). That's the easy part.



If the claim came in within that 2 year post-death period, then the issue will be whether or not they were a "reasonably ascertainable" creditor as defined by RCW 11.40.040.  Obviously they will argue that they were, that they did not receive actual notice, and are therefore entitled to the 24 month claim period per RCW 11.40.051(1)(b)(ii).



The PR can counter that they "exercised reasonable diligence" in  conducting a "reasonable review of the decedent's correspondence, including correspondence received after the date of death,, and financial records, including personal financial statements, loan documents, checkbooks, bank statements, and income tax returns," that were in their possession or reasonably available to them.  See RCW 11.40.040(1).  This creates a rebuttable presumption that the creditor, not being discovered after that reasonable review, was not reasonably ascertainable.  The burden shifts to the creditor to rebut the presumption by clear, cogent and convincing evidence. RCW 11.40.040(2).



If your client filed an affidavit of review (for reasonable ascertainable creditors), send the creditor a copy and explain your position.



I suppose as a last resort, force the creditor to reopen probate and immediately petition the court for a declaratory order finding their actions reasonable and diligent, and determining that the creditor was not reasonably ascertainable. RCW 11.40.040(3).



Of course, negotiating the claim is always an option.



I hope this helps.



Randy


________________________________
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> on behalf of Melinda Grout <mkgroutlaw at gmail.com>
Sent: Friday, October 7, 2016 3:33 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] cred claim after probate closed

Probate opened 2015, closed 2016.  Creditor now coming forward - unknown prior to this, after appropriate review of records, etc for "reasonably ascertainable" creditors.
Best approach to this at minimal expense to client (PR)?

Regards,

Melinda Grout
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