[WSBAPT] Waive Felony of PR

Thu Feb 28 20:28:20 PST 2019

Nick

              In In re Estate of Kershner, an unpublished DIV II case,  
the PR, son 1, was removed and son 2, the alternate PR was appointed  
without bond. Son 1 objected saying “but he’s a felon so not  
qualified, and a bond should have been required.” The court said “nah,  
testator’s intent controls pursuant to RCW 11.12.230”. In its  
discussion, the court noted that the felony took place 20 years prior  
to Mom writing her will, and also referred to RCW 9.95.240 (which  
relates to RCW 9.94A. 640 – the dismissal or vacating of a conviction)  
which Rob and others have suggested would help.
               So, I think it depends on the facts. Was the felony  
before or after the writing of the will?  Do any of the beneficiaries  
object? Etc.
I’ve had the court appoint a grandmother of a 7 year old as the  
guardian even though she was a felon (had been in jail at least a  
couple of years for the sale of drugs in her younger days). The  
guardianship statute says felons can’t be guardians. Since the choice  
was that or place the child in fostercare, the court found it was in  
the child’s best interest to appoint her.
So, I guess I’m in the “it can be done” camp.

andrekita
Law Office of F. Andrekita Silva
1325 Fourth Avenue, Suite 2000
Seattle, Washington 98101
206-224-8288
www.seattle-silvalaw.com

Quoting Rob Wilson-Hoss <rob at hctc.com>:

> Here you go:
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>    9.94A.640 (3) Once THE COURT VACATES A RECORD OF CONVICTION UNDER  
> SUBSECTION (1) OF THIS SECTION, the fact that the offender has been  
> convicted of the offense shall not be included in the offender's  
> criminal history for purposes of determining a sentence in any  
> subsequent conviction, and the offender shall be released from all  
> penalties and disabilities resulting from the offense. FOR ALL  
> PURPOSES, INCLUDING RESPONDING TO QUESTIONS ON EMPLOYMENT  
> APPLICATIONS, AN OFFENDER WHOSE CONVICTION HAS BEEN VACATED MAY  
> STATE THAT THE OFFENDER HAS NEVER BEEN CONVICTED OF THAT CRIME.  
> Nothing in this section affects or prevents the use of an offender's  
> prior conviction in a later criminal prosecution.
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>     Robert D. Wilson-Hoss
> Hoss & Wilson-Hoss, LLP
> 236 West Birch Street
> Shelton, WA 98584
> 360 426-2999
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> rob at hctc.com
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>      FROM: wsbapt-bounces at lists.wsbarppt.com  
> [mailto:wsbapt-bounces at lists.wsbarppt.com] ON BEHALF OF Candace  
> Wilkerson
> SENT: Thursday, February 28, 2019 1:57 PM
> TO: WSBA Probate & Trust Listserv
> SUBJECT: Re: [WSBAPT] Waive Felony of PR
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>    I wondered about that; but wouldn’t the petitioner still need to  
> inform the court about the conviction that was later vacated? 
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>      FROM: wsbapt-bounces at lists.wsbarppt.com  
> <wsbapt-bounces at lists.wsbarppt.com> ON BEHALF OF Rob Wilson-Hoss
> SENT: Thursday, February 28, 2019 12:53 PM
> TO: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
> SUBJECT: Re: [WSBAPT] Waive Felony of PR
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>    vacate the conviction?
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>     Robert D. Wilson-Hoss
> Hoss & Wilson-Hoss, LLP
> 236 West Birch Street
> Shelton, WA 98584
> 360 426-2999
>
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>     www.hossandwilson-hoss.com[1]
> rob at hctc.com
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>     THIS OFFICE DOES DEBT COLLECTION AND THIS E-MAIL MAY BE AN  
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>      FROM: wsbapt-bounces at lists.wsbarppt.com  
> [mailto:wsbapt-bounces at lists.wsbarppt.com] ON BEHALF OF Candace  
> Wilkerson
> SENT: Thursday, February 28, 2019 12:26 PM
> TO: WSBA Probate & Trust Listserv
> SUBJECT: Re: [WSBAPT] Waive Felony of PR
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>    I dealt with this issue in the guardianship context about 5 years  
> ago, in King County.  There was no way that my client, who had been  
> convicted on a felony drug charge in the 80s (I think involving  
> marijuana only), and had no further criminal record, was going to be  
> allowed to serve as guardian.
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>    Candace Wilkerson
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>    Top Ranked Law Firm for 2015 by Fortune Magazine and American Lawyer Media
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>    Candace Wilkerson  | Senior Associate  |  Wong Fleming 
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>      FROM: wsbapt-bounces at lists.wsbarppt.com  
> <wsbapt-bounces at lists.wsbarppt.com> ON BEHALF OF Dalynne Singleton
> SENT: Wednesday, February 27, 2019 2:54 PM
> TO: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> SUBJECT: [WSBAPT] Waive Felony of PR
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>    The statute says “are not qualified” and I would say that means,  
> not waivable to make someone qualified.  I would venture to bet, not  
> bondable either.  I was on the other side of a case where a Will of  
> the father appointed a sister who had been convicted of several  
> felonies as the PR.  My client and other sister objected.  Judge  
> agreed.  In court, Judge asked the Will appointed sister, how do you  
> get around the statute that you are not qualified to be PR?  Sister  
> had no answer except that the father wanted her to serve as PR.   
> Judge did not allow her to be PR.
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>     /DALYNNE SINGLETON/
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>     GOURLEY LAW GROUP
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>     [2]  [3]    
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>      FROM: wsbapt-bounces at lists.wsbarppt.com  
> <wsbapt-bounces at lists.wsbarppt.com> ON BEHALF OF Nicholas Pleasants
> SENT: Wednesday, February 27, 2019 12:41 PM
> TO: wsbapt at lists.wsbarppt.com
> SUBJECT: [WSBAPT] Waive Felony of PR
>
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>    Hello,
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>    Suppose there is an intestate estate where the surviving spouse  
> has a felony conviction. RCW 11.36.010 says this would disqualify  
> the spouse from serving as PR (and presumably as Administrator of  
> intestate estate). Suppose the other heirs were willing to waive  
> this issue. Could the court grant letters given the waivers, or is  
> that a nonwaivable disqualification? Thanks for your insight.
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>    Best,
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>    Nick Pleasants
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>    NICHOLAS PLEASANTS
>
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>    James Pleasants, P.C.
> 2300 130th Ave NE, Suite A-101
> Bellevue, WA 98005-1755
> (425) 615-7070 tel.
> (425) 497-0799 fax
> nick at pleasantslaw.com
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