[WSBAPT] Question about RCW 11.12.265

Fri Oct 11 13:25:08 PDT 2019

That makes more sense!  I know the clerk's office told my client he couldn't get the will without a court order, but maybe they thought he wanted to withdraw it, rather than just access a copy of the will.  The PC wasn't clear about that when I spoke with him.  Thanks so much for the helpful thoughts, Eric.

Candace

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Eric Nelsen
Sent: Friday, October 11, 2019 11:57 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Question about RCW 11.12.265

The "good cause" requirement is actually for withdrawal of the will before death by someone other than the testator, as I interpret the statute anyway.

I think that after death, the Will should not need to be withdrawn; one just presents the death certificate and the clerk unseals the file. And voila, the Will is filed for permanent record as required under RCW 11.20.010<https://app.leg.wa.gov/RCW/default.aspx?cite=11.20&full=true#11.20.010>, which has to be done even if no probate is necessary.

If you truly need to withdraw it for some reason, RCW 11.20.050<https://app.leg.wa.gov/RCW/default.aspx?cite=11.20&full=true#11.20.050> seems to allow that upon court order. If you need an exemplified copy to file elsewhere, that is provided for under RCW 11.20.060<https://app.leg.wa.gov/RCW/default.aspx?cite=11.20&full=true#11.20.060>.

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 Candace Wilkerson
Sent: Friday, October 11, 2019 11:36 AM
To: WSBA Probate & Trust Listserv
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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