[WSBAPT] Question about RCW 11.12.265

Fri Oct 11 12:00:18 PDT 2019

I'm not sure about this but suspect that he will not be able to get the Will delivered to him without a Court order. The law requires that wills be filed after death, so delivery of a death certificate could work to move the Will from the Will repository to a Will Only filing or to a Probate, but removal would only be likely ordered if it was needed in another jurisdiction, say because the decedent moved to another state.

I have found it challenging to deal with the Will repository, and don't recommend it to clients as a "safe place" for their Will, unless there are other issues, or no other options.

Heather

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Candace Wilkerson
Sent: Friday, October 11, 2019 11:36 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Question about RCW 11.12.265

Hi Listmates:
I am trying to interpret this statute, which appears to contradict itself, because I have a potential client who is trying to retrieve his deceased wife's will from the repository, and may not need to probate the will.
RCW 11.12.265<http://app.leg.wa.gov/RCW/default.aspx?cite=11.12.265>
Filing of original will with court before death of testator.
Any person who has custody or control of any original will and who has not received knowledge of the death of the testator may deliver the will for filing under seal to any court having jurisdiction. The testator may withdraw the original will so filed upon proper identification. Any other person, including an attorney-in-fact or guardian of the testator, may withdraw the original will so filed only upon court order after showing of good cause. Upon request and presentation of a certified copy of the testator's death certificate, the clerk shall unseal the file. This section does not preclude filing a will not under seal and does not alter any duty of a person having knowledge of the testator's death to file the will.

The statute indicates that only upon a motion and showing of good cause will the original will be withdrawn after the testator's death.  But then it says the clerk shall unseal the file upon presentation of a certified copy of the death certificate.  Does this mean the clerk will take that action only after receiving the court's order that the will be withdrawn?  And is such a motion filed with notice to all will beneficiaries (if the person knows the contents of the will) and/or heirs of the deceased, or can it be done ex parte with a certified copy of the death certificate?
For some reason I've never had to deal with this, so any guidance would be appreciated.
Thanks,
Candace Wilkerson
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