[WSBAPT] Will found after probate filed - now what?

Tue Jul 18 15:03:32 PDT 2017

I think it matters how things change pursuant to a Will v. intestacy distribution.  Maybe in the case at hand, it doesn’t matter one ioda.  BUT, it might vary a lot.  The Will needs to be “probated” which means verified, witnesses signed, testator/testatrix signed in front of witnesses, etc.
11.28.150
Revocation of letters by discovery of will.
If after letters of administration are granted a will of the deceased be found and probate thereof be granted, the letters shall be revoked and letters testamentary or of administration with the will annexed, shall be granted.
[ 1965 c 145 § 11.28.150.<http://leg.wa.gov/CodeReviser/documents/sessionlaw/1965c145.pdf?cite=1965%20c%20145%20§%2011.28.150.> Prior: 1917 c 156 § 51;<http://leg.wa.gov/CodeReviser/documents/sessionlaw/1917c156.pdf?cite=1917%20c%20156%20§%2051;> RRS § 1421; prior: Code 1881 § 1375; 1863 p 218 § 109;<http://leg.wa.gov/CodeReviser/Pages/session_laws.aspx?cite=1863%20p%20218%20§%20109;> 1860 p 180 § 76.<http://leg.wa.gov/CodeReviser/Pages/session_laws.aspx?cite=1860%20p%20180%20§%2076.>]

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Tuesday, July 18, 2017 2:39 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Will found after probate filed - now what?

I agree that you are following the black letter law but, once again, on a practical basis, are you really helping move your client’s matter forward?  I agree that you need to file the original Will if found at a later time BUT if it changes nothing, why do anything further (or more to the point, spend your client’s money amending the petition (even if it’s easy to do))?  I agree that, if the Will is found first, I would ask the court for Letters Testamentary instead of Letters of Administration.  But what could happen later if you didn’t?  Could a beneficiary or a creditor argue at a later time that there is PR liability simply because the PR didn’t convert the Letters of Administration into Letters Testamentary?  On what basis could a beneficiary or a creditor argue that he or she has been harmed by the PR not converting the Letters of Administration to Letters Testamentary absent some other reason?  Does Letters Testamentary give your PR greater powers or more protection than Letters of Administration?

I acknowledge that attorneys are a conservative lot and we wish to avoid being the test case so we tend to finesse the issue by simply doing things the same way they have always been done if, for no other reason, than to placate our malpractice carriers.   Please understand that I am playing Devil’s Advocate a little here and maybe I have more cynical clients than normal, but if a client asked me why should the client pay me to do an act that may have no impact, I don’t really want to fall back on that old attorney chestnut, “That’s the “LAW” so we HAVE to do it that way.”  Yes, spitting on the sidewalk is illegal but if there is no penalty for spitting on the sidewalk, shouldn’t I, as an attorney advising a client, advise the client of the law AND that there is no penalty for breaking the law.

Maybe, in this case, the saying “no harm, no foul” applies.

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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 Dalynne Singleton
Sent: Tuesday, July 18, 2017 1:47 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Will found after probate filed - now what?

If it is a valid will, it cannot be ignored and must be filed.  After that, heirs/beneficiaries can agree amongst themselves on distributions different from the Will – TEDRA.

It should be a simple amended petition indicating you found the will and it is being filed.  This changes the probate to testacy and the letters should be reissued as testamentary not letters of administration.

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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 John J. Sullivan
Sent: Tuesday, July 18, 2017 1:09 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Will found after probate filed - now what?

I think the Will has to actually be admitted to probate.

John Sullivan

Sent from my iPhone

On Jul 18, 2017, at 9:19 AM, Paul Neumiller <pneumiller at hotmail.com<mailto:pneumiller at hotmail.com>> wrote:
On a practical basis, if the administrator already has nonintervention powers, why do anything?  Additional notices may have to go out if there are non-intestate heir beneficiaries but it seems to me that if the Administrator has nonintervention powers and if the Will doesn’t change the distribution, why petition the court to change from Letters of Administration to Letters Testamentary?  What does that gain the client?

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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 John J. Sullivan
Sent: Monday, July 17, 2017 6:40 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Will found after probate filed - now what?

Had this happen once or twice. As I recall the petition is to appoint administrator PR "with Will annexed."

John Sullivan

Sent from my iPhone

On Jul 17, 2017, at 10:34 AM, Christopher Small <chris at cmslawfirm.com<mailto:chris at cmslawfirm.com>> wrote:
Hello everyone, quick procedural question. Here's the run down.
1. Filed intestate probate believing no will.
2. Will found naming person we petitioned to be named administrator PR.
That's it. What is next step? File motion asking administrator to be named PR? File amended petition? FYI, will already filed with case.
I'm sure the answer is pretty easy, I've just not encountered it before and want to do it right the first time.
Thank you in advance!
Cheers,

Christopher Small
CMS Law Firm LLC<http://cmslawfirm.com>
150 Lake St. S., Suite 218
Kirkland, WA 98033
206.659.1512
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