[WSBAPT] Self-Serving Receipt of Heir

[Rebecca King]

The waiver form in the probate deskbook actually includes the “release attorneys from all liability” language.

Rebecca King
Attorney

Northwest Elder Law Group
11300 Roosevelt Way NE, Suite 101
Seattle, WA 98125
(206) 937-6102
Fax (206) 830-9326

Providing Services in Elder Law

CONFIDENTIALITY NOTICE: This e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged information protected by law. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message.

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of T Roberts
Sent: Wednesday, September 28, 2016 8:48 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Self-Serving Receipt of Heir

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<mailto:roberts at pugetsoundlaw.com>



On Tue, Sep 27, 2016 at 9:35 PM, Doug Schafer <schafer at pobox.com<mailto: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> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Paul
Sent: Tuesday, September 27, 2016 3:09 PM
To: wsbapt at lists.wsbarppt.com<mailto: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?



[cid:image001.jpg at 01D2196C.527F1BF0]




_______________________________________________ WSBAPT mailing list WSBAPT at lists.wsbarppt.com<mailto:WSBAPT at lists.wsbarppt.com> http://mailman.fsr.com/mailman/listinfo/wsbapt


_______________________________________________
WSBAPT mailing list
WSBAPT at lists.wsbarppt.com<mailto:WSBAPT at lists.wsbarppt.com>
http://mailman.fsr.com/mailman/listinfo/wsbapt

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20160928/386be62e/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.jpg
Type: image/jpeg
Size: 7280 bytes
Desc: image001.jpg
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20160928/386be62e/image001.jpg>