[WSBAPT] Opting Out of RCW 11.28.237(1) via Will

[James W. Spencer]

Interesting. Typically, I would discourage a client from trying to thwart state law, and may reconsider whether I wanted that person as a client at all.

In this circumstance, however, (and possibly being influenced by my own personal feelings on the subject) I see a very good reason for the client to ask for this, and I wonder if the following would be a reasonable solution to try and meet the client's goals:

  1.  Expressly draft into the will that the testator does not want heirs notified and the reason why (I wouldn't restrict the PR from doing it unless Testator is certain that the named PR will serve even with that constraint and that the PR can find an attorney to represent her/him in the probate).
  2.  Draft a separate letter of instruction to the PR that reiterates, in more detail, why Testator wants to forgo notice AND states that Testator understands the consequences (CYA for the PR).
  3.  Document the file with lots of written CYA for the drafting attorney stating that attorney has provided advice of the consequence of client's request.

Then, of course, I would do as others have suggested and look to set up nonprobate transfers through TODD, JWROS, beneficiary designations, and/or a RLT.

My $.02.

James W. Spencer
Attorney at Law
Brothers & Henderson, P.S.
2722 Eastlake Avenue East, Suite 200
Seattle, Washington 98102
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Heather de Vrieze
Sent: Tuesday, October 8, 2019 9:38 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Opting Out of RCW 11.28.237(1) via Will

I think the downside of not providing notice is that the SOL doesn't start to run, with a RLT or with Probate. When I have had clients in this situation, I have assisted to set everything up to transfer via nonprobate means, beneficiary designations, JTWROS where appropriate and TODD for the home.

I also have PRs occasionally opt out of tracking down and notifying more remote heirs, but do warn them that if the heir came forward later they could be in a position of defending the Will years after the estate was closed.

Heather

Heather S. de Vrieze
Attorney-at-Law
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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 Rebecca King
Sent: Tuesday, October 08, 2019 9:03 AM
To: wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Opting Out of RCW 11.28.237(1) via Will

Hi Listmates,

I have an estate planning client that absolutely does not want his family to receive the Notice of Appointment of the PR - he has no relationship with his family after they "disowned" him for being gay.  He does not want his family to know the whereabouts of his husband or even to know he is dead.  Have any of you ever used a clause which mandates that the PR shall not provide notice to heirs under RCW 11.28.237?  Do you think it would survive a later challenge by an heir?

I am also consider an RLT which seems, under RCW 11.103.050, to time bar a trust contest to two years after the Trustor's death.

Thanks in advance for your thoughts.

Rebecca King
Attorney

Northwest Elder Law Group
2150 N. 107th Street, Suite 501
Seattle, WA 98133
Main: (206) 937-6102
Direct Line and Fax: (206) 866-6544

Providing Services in Elder Law

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