[WSBAPT] A couple probate questions

[Philip N. Jones]

Three comments:

1.        In most states, there would be both fiduciary liability (the PR) and transferee liability (the beneficiaries).

2.       In an Oregon probate petition, most courts are willing to accept the petitioner’s statement in the body of the petition that the first person nominated in the will is incapacitated.  Other evidence is not needed.  The petition is signed under penalties of perjury, and most courts accept that.

3.       It is often best to not mention incapacity in a power of attorney.  Keep it clean, so that a bank teller does not need to ask about whether the principal is incapacitated or not.
Phil Jones
Portland, OR


From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Diane J. Kiepe
Sent: Wednesday, April 22, 2020 7:50 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] A couple probate questions

I have made preliminary distributions in various circumstances.  The creditor will actually look to the PR for payment – that is to say the Creditor is not likely to go knocking on a beneficiaries door (absent unusual circumstances).  The PR is the one ultimately on the hook.

In cases where someone is unable to serve due to incapacity, I have attached a physician’s letter.  I have also considered but have not used, having an Agent under a POA signing an affidavit under oath that the Agent is serving under an effective POA due to Principal’s incapacity.  I think this would work in Spokane County as they are somewhat relaxed.  I have not had just the successor be able to sign a document saying the predecessor was incapacitated.

Good luck.


Diane J. Kiepe

Diane J. Kiepe
Douglas Eden
717 W. Sprague Ave.
Suite 1500
Spokane, WA  99201
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>
509-455-5300



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 Yip
Sent: Tuesday, April 21, 2020 5:52 PM
To: wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] A couple probate questions

1. Distribution: Normally, we wait 4 months after first publication to distribute assets in case there are creditor claims.  However, if you are certain there will be no creditor claims, is there any law prohibiting transfers prior to the end of that 4 month period?  If it turns out there is a creditor claim, the creditor can clawback transferred assets, correct?

2. Unable to Serve: In the absence of a guardianship, how can you establish that someone is unable to serve as PR due to incapacity?
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