[WSBAPT] Is This Creditor Ascertainable?

Wed Apr 1 18:06:15 PDT 2020

Or.  The PR may look in a different place and find something within the 4
month period even if the search of documents was done earlier.  So, I think
waiting the four months to file the affidavit is best.

Susan

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>
On Behalf Of Eric Nelsen
Sent: Wednesday, April 01, 2020 4:57 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Is This Creditor Ascertainable?

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  <http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.040> 11.40.040

"Reasonably ascertainable" creditor—Definition—Reasonable
diligence—Presumptions—Petition for order.

(1) For purposes of RCW
<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.051> 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
<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.051> 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
<http://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.080> 11.96A.080 and the
notice specified under RCW
<http://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.110> 11.96A.110 must
also be given by publication.

[
<http://lawfilesext.leg.wa.gov/biennium/1999-00/Pdf/Bills/Session%20Laws/Sen
ate/5196.SL.pdf?cite=1999%20c%2042%20%C2%A7%20607;> 1999 c 42 § 607;
<http://lawfilesext.leg.wa.gov/biennium/1997-98/Pdf/Bills/Session%20Laws/Sen
ate/5110-S.SL.pdf?cite=1997%20c%20252%20%C2%A7%2010;> 1997 c 252 § 10;
<http://lawfilesext.leg.wa.gov/biennium/1993-94/Pdf/Bills/Session%20Laws/Hou
se/2270-S.SL.pdf?cite=1994%20c%20221%20%C2%A7%2028;> 1994 c 221 § 28;
<http://leg.wa.gov/CodeReviser/documents/sessionlaw/1974ex1c117.pdf?cite=197
4%20ex.s.%20c%20117%20%C2%A7%2036;> 1974 ex.s. c 117 § 36;
<http://leg.wa.gov/CodeReviser/documents/sessionlaw/1965c145.pdf?cite=1965%2
0c%20145%20%C2%A7%2011.40.040.> 1965 c 145 § 11.40.040. Prior:
<http://leg.wa.gov/CodeReviser/documents/sessionlaw/1917c156.pdf?cite=1917%2
0c%20156%20%C2%A7%20110;> 1917 c 156 § 110; RRS § 1480; prior: Code 1881 §
1470;
<http://leg.wa.gov/CodeReviser/Pages/session_laws.aspx?cite=1854%20p%20281%2
0%C2%A7%2083.> 1854 p 281 § 83.]

Sincerely,

Eric

Eric C. Nelsen

Sayre Law Offices, PLLC

1417 31st Ave South

Seattle WA 98144-3909

206-625-0092

 <mailto:eric at sayrelawoffices.com> eric at sayrelawoffices.com

Covid-19 Update - Sayre Law Offices remains available to serve our clients
and the public during this time, subject to the orders and recommendations
of government authority. Please do not hesitate to contact us if we may be
of service to you, your family, or your business.

All attorneys are working remotely during regular business hours and are
available via email and by phone; please call the Seattle office.
Videoconferencing also is available. Signing of estate planning documents
can be completed and will be handled on a case-by-case basis; please call
the Seattle office.

MAIL AND DELIVERIES can be received at the Seattle office. For any other
needed arrangements, please call the Seattle office.

Be assured that we will continue to advise and support our clients
throughout this health emergency.

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 John J. Sullivan,
Esq.
Sent: Wednesday, April 1, 2020 4:36 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com
<mailto: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

LYONS | SULLIVAN

10655 NE 4TH STREET, SUITE 704

BELLEVUE, WA  98004

425·451·2400 TEL 425-451-7385 FAX

WWW.DLJSLAW.COM <http://WWW.DLJSLAW.COM> 

Confidentiality Notice

This email transmission is intended only for the addressee named above.  It
contains information that is privileged, confidential, or otherwise
protected from use and disclosure.  If you are not the intended recipient,
you are hereby notified that any review, disclosure, copying, or
dissemination of this transmission or the taking of any action in reliance
on its contents or other use is strictly prohibited.  If you have received
this transmission in error, please destroy the original and notify us by
telephone immediately.  Thank you for your cooperation

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20200401/a265adbf/attachment.html>