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

[Judith E Luther]

If the Will is ignored because it mirrors an intestate distribution scheme, the Will contest period does not run - correct?  What would then stop someone from, later down the road, producing  another Will with an alternate distribution scheme after closing the intestate probate matter?  Wouldn't/couldn't that cause problems?  Does it not make sense, then, to follow RCW 11.28.150 for purposes of creating finality of establishing the Will as "the" Last Will?  Or am I missing something re: the issue of running the clock on the Will contest period with an intestate probate?

Judith E. Luther
Carlson-Whitley & Luther, LLP
1217 Cooper Point Road SW, Suite 6
Olympia, WA 98502-7206
Ph: (360) 915-9774
Fx: (360) 915-8759



From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Tuesday, July 18, 2017 3:59 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Will found after probate filed - now what?

Bingo.  If the Will changes things, then yes, by all means, amend the petition but if everything stays the same, why spend the time (and money)?    For example, I have two sons (assume no spouse).  If I die intestate, everything goes to them 50/50 AND my Will says everything goes to them 50/50. So my Will reflects the same distribution as the laws of consanguinity.

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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 Heather deVrieze
Sent: Tuesday, July 18, 2017 3:04 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?

So perhaps the crux of the matter is does the Will provide for identical distribution to intestacy? If not, the Will absolutely must be filed and the petition amended, and new notice given. If not, perhaps just filing the Will is sufficient.

Heather

Heather S. de Vrieze
Attorney-at-Law
[cid:image001.jpg at 01D013C2.30F35160]
3909 California Avenue SW
Seattle, WA 98116-3705
(206)938-5500
heatherd at westseattlelaw.com<mailto:heatherd at westseattlelaw.com>
www.westseattlelaw.com<http://www.westseattlelaw.com/>
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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 Paul Neumiller
Sent: Tuesday, July 18, 2017 2:39 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 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?

<image001.jpg>

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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