[WSBAPT] Probate Wrongful Death of servicemember

Tue Oct 24 11:20:45 PDT 2017

I just gnawed on the issue of competing probates in an appeal. Typically the primary probate is in the state of domicile, which is not necessarily state of residence, especially for someone who is in the military and posted in a particular place. The primary probate of a will generally lies with the court of the state and county in which the decedent was domiciled. In Re Estate of Tolson, 89 Wn.App. 21, 31, 947 P.2d 1242 (1997) (citing In re Estate of Stein, 78 Wn.App. 251, 261, 896 P.2d 740 (1995)).

"'Residence' indicates where a person lives while 'domicile' signifies the place where a person intends a fixed and permanent home." Tolson, 89 Wn.App. at 36.

RCW 11.96A.040 confirms the Court can take jurisdiction, but the Court has discretion to refuse jurisdiction if there is a competing probate in another state that can handle the matter just as well.

Ancillary probate may lie in any state in which the property of the decedent has a situs. Id. at 31 (citing Hatch v. United States, 29 F.2d 213 (N.D.N.Y. 1928)). Ancillary probate is unnecessary when the only asset within that state is a cause of action that the domiciliary personal representative is capable of pursuing directly. See Estate of Ludwig, below.

The question here is whether or not a Washington probate is necessary to administer any assets in Washington. A wrongful death action by itself doesn't require a WA probate. In re Estate of Ludwig, 49 Wn.2d 312, 301 P.2d 158 (1956). That case holds that if the only asset in WA is a wrongful death action, and therefore the Estate essentially has no assets (because WD benefits belong to the statutory beneficiaries, not the Estate), then there is no need for a Washington probate and an out-of-state PR can pursue the wrongful death action in Washington courts directly.

Keep in mind that if there is also a viable personal injury survivorship action in addition to the WD action, technically there may be some right of reimbursement to the Estate for medical expenses or other special damages of the decedent (decedent's general damages are not estate assets but go to the WD beneficiaries, per RCW 4.20.046(1). Also, if he was stationed here, maybe he has a WA bank account or personal belongings or other assets that might require WA probate. But if all assets can be handled by a CA-appointed PR, then the WA courts are allowed to refuse to accept jurisdiction.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Dalynne Singleton
Sent: Tuesday, October 24, 2017 10:38 AM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Probate Wrongful Death of servicemember

I have a new probate opened in WA on behalf of a deceased JBLM servicemember.  He was residing in WA at the time of his death in a MVA which occurred in Washington.  His death certificate states his residence at JBLM.  I read the statute (below) to indicate the probate needed to be opened in WA and appoint an Administrator with me to serve as Resident Agent for the wrongful death settlement to be handled.  A CA attorney was hired by the father to negotiate the WD of his son. I opened the probate and the father was appointed (resident of CA) and now says he doesn't want to sign Oath so no letters issued.

A California attorney called and said he is going to open the probate in CA and appoint the brother and handle the WD.
Must be a determinative answer to where the probate should be opened and not a rush to the courthouse to see who can get Letters issued.

RCW 11.96A.040
Original jurisdiction in probate and trust matters-Powers of court.
(1) The superior court of every county has original subject matter jurisdiction over the probate of wills and the administration of estates of incapacitated, missing, and deceased individuals in all instances, including without limitation:
(a) When a resident of the state dies;
(b) When a nonresident of the state dies in the state; or
(c) When a nonresident of the state dies outside the state.
(2) The superior court of every county has original subject matter jurisdiction over trusts and all matters relating to trusts.
(3) The superior courts may: Probate or refuse to probate wills, appoint personal representatives, administer and settle the affairs and the estates of incapacitated, missing, or deceased individuals including but not limited to decedents' non-probate assets; administer and settle matters that relate to non-probate assets and arise under chapter 11.18<http://app.leg.wa.gov/RCW/default.aspx?cite=11.18> or 11.42<http://app.leg.wa.gov/RCW/default.aspx?cite=11.42> RCW; administer and settle all matters relating to trusts; administer and settle matters that relate to powers of attorney; award processes and cause to come before them all persons whom the courts deem it necessary to examine; order and cause to be issued all such writs and any other orders as are proper or necessary; and do all other things proper or incident to the exercise of jurisdiction under this section.
(4) The subject matter jurisdiction of the superior court applies without regard to venue. A proceeding or action by or before a superior court is not defective or invalid because of the selected venue if the court has jurisdiction of the subject matter of the action.

Dalynne Singleton

Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street / PO Box 1091
Snohomish, WA 98291

360.568.5065
360.329.4079
360.568.8092  fax
dalynne at glgmail.com<mailto:dalynne at glgmail.com>

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