[WSBAPT] Open a probate or not

Thu Aug 16 13:15:11 PDT 2018

My 2 cents.

Give this some thought.

I wonder why the motorcyclist has not made a claim so far.   If that is the case:

Most plaintiff attorneys will make at least a cursory check of the status of the person's financial situation and, unless there is a fortune to be had, they stay within the applicable limits.  They do not like to go after personal liability and collection problems.

You risk non-coverage if you do not notify the liability carrier as to the pending claim and they are prejudiced by the delay (e.g., cannot collect important information).  I'd tender the claim to the insurance company.  I would tell the insurance company the timing situation and they will likely not do anything because it is in their interests to wait it out, as well as your client.  So, no damage there.

Even if there is a risk of liability beyond the policy limits, the insurance company may be able to get it settled for its limits and get a release for your client (her estate). The claimant does not need to know the insured has passed away until the case is settled.

If the injured party goes to their UIM (assuming there is UIM for a motorcyclist) , the UIM carrier has the right to go after the at fault party for subrogation.  Would the two year limit work there?   Will you get the benefit of waiting it out to avoid that as well?  I would think so.

Even if the motorcyclist has been in touch with your insurance company on his own or via an attorney, much of this still applies.

Ralph Maimon

Law Office of Ralph Maimon, P.S.
2811 E. Madison Street, Suite 202
Seattle, WA 98112
(206) 323-0911
Fax: (206)462-1505
www.maimonlaw.com<http://www.maimonlaw.com/>

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of nestor at pplsweb.com
Sent: Thursday, August 16, 2018 12:25 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Open a probate or not

Eric,

Great points. My understanding of the question posed is that accident occurred 18 months ago and the decedent just passed away. The problem is that as a defendant in suit or claim (the decedent) has a duty to cooperate with the insurance company or face denial of coverage.

Kristina,

How long ago did the decedent pass away? If 18 months ago, then you could wait it out for 6 months, but someone needs to monitor communications sent by the insurance company (eventhough they will not speak with you).

Nestor

Nestor Gorfinkel, Attorney at Law
Licensed in Washington & Florida
Florida Civil-Law (International) Notary

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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Eric Nelsen
Sent: Thursday, August 16, 2018 12:09 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Open a probate or not

So decedent is a potential defendant in a personal injury claim by the motorcycle rider who was injured?

I can see some good reasons NOT to open a probate here, but there may be other reasons to open it, if for example the heirs need immediate access to decedent's assets. (I suppose they might, since the reverse mortgage needs to get paid which means the house has to be sold.)

But assuming you can make a decision solely on the basis of decedent's potential liability, I think best not to open the probate, and wait to see what happens. The goal is to make it past the time limit on claims against the estate, 2 years after date of death. RCW 11.40.051. The plaintiff's claim against the estate will be barred after 2 years, and the probate can be opened with assurance that decedent's assets won't be subject to a potential judgment.

If the plaintiff wants to settle within the 2-year limit, hopefully they'll aim for, at most, policy limits on the decedent's insurance, plus UIM coverage the plaintiff had. If plaintiff does eventually decide to sue the decedent for damages in excess of policy limits, then the later they discover that defendant has died, the more likely it is they'll miss the deadline.

If the reverse mortgage is going to require opening probate so the house can be sold, then you're stuck opening probate anyway, if the house was in decedent's name only.

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> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Kristina Driessen
Sent: Thursday, August 16, 2018 11:27 AM
To: wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Open a probate or not

HI All:

I am trying to wrap my head around a situation.  The decedent had a reverse mortgage whereas they MAY be 100k after all is said and done; depending on the market.  The issue is that the decedent was in an auto accident about 18 months ago.  It appears it was a significant accident [the other person was on a motorcycle and had head injuries].  The decedent was sited for what that is worth.

What is the best strategy........open an  probate and then discuss with her insurance the status of the accident.  Try to talk to the insurance now; no guarantee they will speak to us as no PR yet.  In the last scenario we then let the cat out of the bag that decedent has passed.

My gut says open the probate and investigate more.  Any insight?

Kristina Driessen

A Street Legal Services

253-939-0811

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