[WSBAPT] TEDRA - expenses to heir

Wed Jun 21 07:49:09 PDT 2017

Here is my briefing identifying the case of Estate of Jones which Jane references.  I took out facts and my references to the G estate which I was handling:

The court is left in the position to consider the payment of RE taxes and the lack of rent paid over the last 11 years.  Until an estate is closed, the heirs may not treat estate real property as their own. In re Estate of Peterson, 12 Wash.2d 686, 734, 123 P.2d 733 (1942).  Therefore, until the G home sold and closed, LM had the rights of an Administrator in the property wherein "[a]n executor is entitled to possess and control estate property during the administration of the estate and has a right to it even against other heirs.[1]  Once the estate was opened, LM immediately searched and obtained a buyer for the property.  In re Estate of Kruse, 52 Wash.2d 342, 343, 349, 324 P.2d 1088 (1958) (holding that a spouse with a potential homestead right in the property did not have to pay rent during an intestacy probate where the property was not otherwise disposed of by will); Ryan v. Plath, 18 Wash.2d 839, 844, 847, 864-65, 140 P.2d 968 (1943) (refusing to allow testimony about rent where an appointed administrator had run an intestate decedent's farm).  In re Estate of Jones, 152 Wash. 2d 1, 14-15, 93 P.3d 147, 153-54 (2004).  The trial court also found that Russell breached his fiduciary duty by having the estate pay for utilities, taxes, and insurance while he inhabited the house.  It is undisputed that the estate paid for these costs during 1996 and 1997. Although Russell could distribute the property to himself, he could not use the property for his personal use prior to estate closure. Therefore, the trial court properly found Russell responsible for the utilities, taxes, and insurance while he inhabited the house.  In re Estate of Jones, 152 Wash. 2d 1, 15, 93 P.3d 147, 154 (2004).

Dalynne Singleton

Gourley Law Group
Snohomish Escrow
The Exchange Connection
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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Jane Bitz
Sent: Tuesday, June 20, 2017 3:42 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] TEDRA - expenses to heir

Rob:
I had a case where we had to file a TEDRA for an Order of Ejectment where one heir moved in with mom before her death and refused to move out even though he had the means to do so because he collected on a $10,000 life insurance policy. We petitioned the Court for an Order of Ejectment (that could be enforced by a Writ of Restitution if he didn't move out). I used RCW § 11.96A.150 as my justification for paying the costs including mortgage, insurance, utilities, court costs and attorney fees from the share of the holdover heir because he would not move out to allow the property to be cleaned out and sold. The Court granted the Order. Since the heir did not move, we had to go back for a further Order to get all the costs paid for the sheriff to go out with the Writ, etc.

11.96A.150 . Costs - Attorneys' fees (1) Either the superior court or any court on an appeal may, in its discretion, order costs, including reasonable attorneys' fees, to be awarded to any party: (a) From any party to the proceedings; (b) from the assets of the estate or trust involved in the proceedings; or (c) from any nonprobate asset that is the subject of the proceedings. The court may order the costs, including reasonable attorneys' fees, to be paid in such amount and in such manner as the court determines to be equitable. In exercising its discretion under this section, the court may consider any and all factors that it deems to be relevant and appropriate, which factors may but need not include whether the litigation benefits the estate or trust involved. (2) This section applies to all proceedings governed by this title, including but not limited to proceedings involving trusts, decedent's estates and properties, and guardianship matters. This section shall not be construed as being limited by any other specific statutory provision providing for the payment of costs, including RCW 11.68.070 and 11.24.050, unless such statute specifically provides otherwise.

My brief didn't have a cite to any caselaw on point because I didn't find any. There was a case where the personal representative/son/lawyer lived in the parents' house for years after they died and his brothers prevailed in a case to have him removed and the court ordered him to pay the reasonable rental value for the house for all the months he occupied it for free after he was appointed as PR. That case might be able to assist you.

Jane Bitz.

Jane G Bitz
Of Counsel
Wolff, Hislop & Crockett, PLLC
12209 E Mission, Suite 5
Spokane Valley WA 99206-4824
(509) 927-9700; FAX (509) 777-1800
jbitz at whc-attorneys.com<mailto:jane at jbitzlaw.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 Juhl, Hans P.
Sent: Tuesday, June 20, 2017 10:13 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] TEDRA - expenses to heir

Please reply to list.

Hans P. Juhl
Attorney
Ryan, Swanson & Cleveland, PLLC
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Direct 206.654.2203 | Direct Fax 206.652.2903
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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 Rob Wilson-Hoss
Sent: Tuesday, June 20, 2017 9:33 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] TEDRA - expenses to heir

Probate, one heir out of four is addicted and has been a constant problem. We have had two separate restraining order proceedings, one in the probate, one in an anti-harassment context, each cross-references the other, in order to protect the Estate property and the personal representative. All of it is directly related to the Estate. The proceedings have had multiple events and all have resulted in restraining orders and orders prohibiting the problem heir from entering the Estate property or stealing its assets, which haven't stopped him, at least in part. I want to take the costs of these proceedings out of his share. I plan to TEDRA this, given the broad scope of "matter" and 11.96A in general, and believe the local court will be in agreement. I just can't find the right search terms to locate any case or statutory authorities. The PR has used some of her personal funds to pay for the expenses, and some of the Estate rental income. The latter is not sufficient so she has supplemented. There will be distributions to all of the heirs, maybe $50,000. Anyone have any authorities, or thoughts?  Thanks.

Rob

Robert D. Wilson-Hoss
Hoss & Wilson-Hoss, LLP
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[1] RCW 11.48.020; Bishop v. Locke, 92 Wash. 90, 92, 158 P. 997 (1916).
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