[WSBAPT] Self-Serving Receipt of Heir

[T Roberts]

I'd second Doug's alternatives.  Dealing with contentious heirs can justify
a final hearing to close the estate and discharge the PR.  However, I would
be wary of the extent of the work expended on releases and who paid it.

I've been in courtroom when a commissioner ordered fees disgorged from the
PR and the PR's attorney for work associated with trying to get settlement
agreements and waivers from heirs and beneficiaries releasing the PR from
liability, reasoning that all work associated with any release of liability
was for the PR's personal benefit, did not provide any benefit to the
estate, and were not appropriate administrative expenses.  The Commissioner
spent quite a long time dressing down the PR and his counsel for this
misappropriation of estate resources.  The amount of fees was substantial,
I can't remember the exact figure but it was well over $20k, so the sheer
amount may have been what sent the commissioner over the edge.  Still a
good cautionary example.

Tara M. Roberts
Puget Sound Law pllc
roberts at pugetsoundlaw.com



On Tue, Sep 27, 2016 at 9:35 PM, Doug Schafer <schafer at pobox.com> wrote:

> I have doubts that RPC 1.8(h) applies, or that the requested release of
> the PR's lawyer is improper.  The estate beneficiaries are not clients or
> former clients of the PR's lawyer, so RPC 1.8(h) by its terms does not
> apply.  But if a beneficiary refuses to sign a release of the PR, then the
> PR's lawyer reasonably might advise his client (PR) to opt for a costly
> judicial discharge by filing a final report and petition for distribution
> and schedule a hearing (rather than filing a declaration of completion) for
> a judicial decree of distribution and discharge of the PR. (RCW 11.76.040 -
> .060).  However, if a beneficiary signs a release of the PR but strikes out
> the phrase releasing the PR's lawyer, I believe the lawyer ought to
> consider that an acceptable release, and the lawyer should rely on Trask v.
> Butler, 123 Wn.2d 835, to shield him/her from liability.  If the lawyer in
> such a case insists on a personal release of the lawyer, I believe the
> lawyer's interests are then conflicting with his/her client's interests in
> expeditiously closing the estate.
>
> RPC 1.8(h) reads:
> (h) A lawyer shall not:
> (1) make an agreement prospectively limiting the lawyer's liability to a
> client for malpractice unless permitted by law and the client is
> independently represented by a lawyer in making the agreement; or
> (2) settle a claim or potential claim for such liability with an
> unrepresented client or former client unless that person is advised in
> writing of the desirability of seeking and is given a reasonable
> opportunity to seek the advice of an independent lawyer in connection
> therewith.
>
> Doug Schafer, in Tacoma
>
>
> On 9/27/2016 4:06 PM, Karen E. Boxx wrote:
>
>
> Sounds like a potential violation of RPC 1.8(h).
>
>
>
> *From:* wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.
> wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>] *On Behalf Of *Paul
> *Sent:* Tuesday, September 27, 2016 3:09 PM
> *To:* wsbapt at lists.wsbarppt.com
> *Subject:* [WSBAPT] Self-Serving Receipt of Heir
>
>
>
> Just saw something that raised my eyebrows in a probate where I represent
> a beneficiary.  The PR’s attorney prepared, and is distributing for
> signature, a “Receipt of Heirs” that releases the estate, the PR, *AND
> THE PR’S ATTORNEY*.  It releases “[PR’s attorney’s name], in his capacity
> as attorney for the personal representative, from any further or other
> liability with regard to this matter.”  This just doesn’t pass the smell
> test for me.  OR, should I start preparing my Receipt of Heirs by releasing
> *me* for probates I am handling???  What is the common practice out there
> in probate land?
>
>
>
>
>
>
>
>
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