[WSBAPT] Will or No Will

[Derek Jensen]

Yes, the probate should be opened intestate, but you will also have the issue of who should be the administrator.

Also, sometimes heirs are expecting to be disinherited and may be willing to forego all or a portion of their inheritance. You could certainly rush to the court house and represent the administrator of the estate, but would that limit you on advocating for your client’s position?  Prior to opening the probate, could you represent your client as an intestate heir, forward the declaration from the EP attorney and seek agreement on administration of the estate on more favorable terms?

Sincerely,

Derek W. Jensen, JD, LLM
Managing Attorney


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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Eric Nelsen
Sent: Monday, June 24, 2019 10:40 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Will or No Will

An oral will (nuncupative will) is not valid in Washington except under VERY limited circumstances for limited personal property per RCW 11.12.025<https://app.leg.wa.gov/RCW/default.aspx?cite=11.12.025>. And a written will absolutely must meet the requirements of RCW 11.12.020<https://app.leg.wa.gov/RCW/default.aspx?cite=11.12.020> and be signed, in presence of witnesses, etc.

I think you have an intestacy here, and there is no realistic option I can think of that puts the intended disinheritances into effect.

Reluctantly, the only remedy I can think of is for the kids who were supposed to get the bulk of the estate to investigate a malpractice action against the EP attorney, as "intended beneficiaries" of the EP work that lost their benefit. The measure of damages is potentially the difference between their shares in intestacy distribution versus the distribution scheme under the will. The standard to actually win on the malpractice claim would be pretty difficult, I would think.

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 Amy Goertz
Sent: Sunday, June 23, 2019 8:43 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Will or No Will

Has anyone started a probate on the premise that there is a “Will” when there isn’t?

Decedent met with an estate planning attorney nearly a year ago and gave instructions for drafting estate planning documents leaving the bulk of his estate to some of his children and leaving his estranged children $1.00 each. I am unclear as to why it took so long to get things put together, i.e. whether it was the attorney or the client who was dragging his feet. In any case, a few months ago, Decedent had a medical issue and contacted the attorney to tell him to finish up the documents and schedule the appointment to sign them ASAP as he was ill. Appointment was scheduled. Decedent died prior to signing.

The estate planning attorney has indicated he would testify as to the decedent’s intent, but is it all for naught since he didn’t get anything actually signed? Is there any way to cobble together documents to prove the testator’s intent to disinherit some of his children?

If so, how would you start the probate? Would you start it as intestate but then do Petition and Order as to the Heirs and just name the favored children?

I appreciate your thoughts on this …

Amy J. Goertz, J.D.
Goertz & Lambrecht PLLC
amyjgoertz at icloud.com<mailto:amyjgoertz at icloud.com>

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Goertz & Lambrecht PLLC
www.goertzlambrecht.com<http://www.goertzlambrecht.com/>

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