[WSBAPT] Question about RCW 11.12.265

Fri Oct 11 13:21:31 PDT 2019

Thanks, Steven!  My potential client showed up at the KC Clerk's Office, and they told him he needed to file a motion with the court so now he's really frustrated.

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Steven Matyas
Sent: Friday, October 11, 2019 11:46 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Question about RCW 11.12.265

Candace,

I was previously a clerk in the King County clerk's office, so my practical experience (and the way I read the statute now) is that while the testator is alive, a person other than the testator may withdraw the will only by order of the court. However, if the testator is deceased, the clerk has to unseal the will from the repository upon presentation of the death certificate.
Steven Matyas
CURRAN LAW FIRM
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Kent, WA 98032
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Fax: 253 852 2030
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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 Candace Wilkerson
Sent: Friday, October 11, 2019 11:36 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto: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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Candace Wilkerson  | Senior Associate  |  Wong Fleming

10675 Willows Road NE, Suite 250  |  Redmond, WA 98052
Phone: 425.869.4040  |  Fax: 425.869.4050
cwilkerson at wongfleming.com<mailto:cwilkerson at wongfleming.com>

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