[WSBAPT] Is This Creditor Ascertainable?

[Eric Nelsen]

For some reason I have always delayed having the PR sign an affidavit until after the 4 months is done...but on reading the statute I'm not sure that is required. Is there other authority that implies that the review of decedent's papers must continue through the entire 4-month period?

Reading RCW 11.40.040, the time frame seems to hinge on for how long "correspondence received after the date of death" has to be reviewed before the PR can file her/his affidavit. I think a month post-death might be the minimum, to catch monthly bills. But some utilities bill only every other month. So maybe two months, or three months in case there's something that's quarterly? In which case maybe 4 months is just prudent.


RCW 11.40.040<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.040>
"Reasonably ascertainable" creditor-Definition-Reasonable diligence-Presumptions-Petition for order.
(1) For purposes of RCW 11.40.051<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.051>, a "reasonably ascertainable" creditor of the decedent is one that the personal representative would discover upon exercise of reasonable diligence. The personal representative is deemed to have exercised reasonable diligence upon conducting a reasonable review of the decedent's correspondence, including correspondence received after the date of death, and financial records, including personal financial statements, loan documents, checkbooks, bank statements, and income tax returns, that are in the possession of or reasonably available to the personal representative.
(2) If the personal representative conducts the review, the personal representative is presumed to have exercised reasonable diligence to ascertain creditors of the decedent and any creditor not ascertained in the review is presumed not reasonably ascertainable within the meaning of RCW 11.40.051<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.051>. These presumptions may be rebutted only by clear, cogent, and convincing evidence.
(3) The personal representative may evidence the review and resulting presumption by filing with the court an affidavit regarding the facts referred to in this section. The personal representative may petition the court for an order declaring that the personal representative has made a review and that any creditors not known to the personal representative are not reasonably ascertainable. The petition must be filed under RCW 11.96A.080<http://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.080> and the notice specified under RCW 11.96A.110<http://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.110> must also be given by publication.
[ 1999 c 42 § 607;<http://lawfilesext.leg.wa.gov/biennium/1999-00/Pdf/Bills/Session%20Laws/Senate/5196.SL.pdf?cite=1999%20c%2042%20%C2%A7%20607;> 1997 c 252 § 10;<http://lawfilesext.leg.wa.gov/biennium/1997-98/Pdf/Bills/Session%20Laws/Senate/5110-S.SL.pdf?cite=1997%20c%20252%20%C2%A7%2010;> 1994 c 221 § 28;<http://lawfilesext.leg.wa.gov/biennium/1993-94/Pdf/Bills/Session%20Laws/House/2270-S.SL.pdf?cite=1994%20c%20221%20%C2%A7%2028;> 1974 ex.s. c 117 § 36;<http://leg.wa.gov/CodeReviser/documents/sessionlaw/1974ex1c117.pdf?cite=1974%20ex.s.%20c%20117%20%C2%A7%2036;> 1965 c 145 § 11.40.040.<http://leg.wa.gov/CodeReviser/documents/sessionlaw/1965c145.pdf?cite=1965%20c%20145%20%C2%A7%2011.40.040.> Prior: 1917 c 156 § 110;<http://leg.wa.gov/CodeReviser/documents/sessionlaw/1917c156.pdf?cite=1917%20c%20156%20%C2%A7%20110;> RRS § 1480; prior: Code 1881 § 1470; 1854 p 281 § 83.<http://leg.wa.gov/CodeReviser/Pages/session_laws.aspx?cite=1854%20p%20281%20%C2%A7%2083.>]


Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of John J. Sullivan, Esq.
Sent: Wednesday, April 1, 2020 4:36 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Is This Creditor Ascertainable?


Listmates:

I have a hypothetical question that came close to being a real practice question today.

Say you publish notice to creditors. Then a creditor you didn't know about contacts your client say four days before the four month period ends. Does that creditor become ascertainable, entitled to a letter and 30 period just because of that late phone call or letter to the client? Or can you count down the four days?

I say hypothetical because in my particular case it's hard to argue the home care services were not provided to the decedent the month before he died, even though he and his AIF fired them a few weeks before he died.

Has this come up before? I guess if you boil it down, the question is whether ascertainability is determined at the time notice is published, or any time before the four months expires. I assume if you find out after the four months it's not retroactive. But I think I'm leaning in the direction of saying the creditor in my hypothetical becomes ascertainable because the due diligence declaration, if you file one, is made after the four months expires.

Thoughts?

Best regards,
JOHN J. SULLIVAN,
ATTORNEY

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