[WSBAPT] Reopening 2004 Probate

Wed Aug 12 12:27:13 PDT 2020

Some thoughts I have:

You could reopen the estate and ask that your trustee client be appointed as the PR rather than the old PR.  Then, bring a TEDRA action against the old PR arguing discovery rule for reason it was not brought within the 3 year statute for TEDRA claims against the old PR.    I recently brought a TEDRA action and argued discovery rule and statute of limitations.  Here is my argument, seems it might fit if you can prove the father, who should have inherited the monies from the sale, was unaware of the sale and his inheritance and had no idea the probate had been closed administratively.  Of course, there is language about “should have known” which may play a part.  I would have to do some research on this but this might be something to consider.  Since it has been since 2007 that the clerk closed the probate and then the father died in 2007, it is going to be difficult argue that 13 years has passed with no one knowing this had happened.

XI.              STATUTE OF LIMITATIONS
11.1   Plaintiff realleges all preceding paragraphs as if fully set forth in this cause of action.
11.2   The statute of limitations for actions against an attorney-in-fact for breach of fiduciary duties is as set forth in RCW 4.16.080(2) and RCW 11.96A.070<https://1.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000259&cite=WAST11.96A.070&originatingDoc=N292A5AE09D7F11DA82A9861CF4CA18AB&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)>.   The statute of limitations on a claim of breach of fiduciary duty is three years, however, the limitations period does not begin to run until the cause of action accrues.  Janicki Logging & Const. Co., Inc. v. Schwabe, Williamson & Wyatt, P.C., 109 Wn. App. 655, 659, 37 P.3d 309 (2001).
11.3   Under Washington’s discovery rule, a cause of action does not accrue until the plaintiff knows or, through the exercise of due diligence should know, the essential elements of the cause of action. Green v. A.P.C., 136 Wn.2d 87, 95, 960 P.2d 912 (1998). The discovery rule applies to a claim of breach of fiduciary duty.  Douglass v. Stanger, 101 Wn. App. 243, 256, 2 P.3d 998 (2000).   The key consideration is the factual basis for the claim and an action accrues when the plaintiff knows or should know the relevant facts supporting it, whether or not the plaintiff knows he or she has a legal cause of action.  Allen v. State, 118 Wn.2d 753, 758, 826 P.2d 200 (1992).
11.4   J operated as attorney in fact under a Powers of Attorney from 12/30/16, 8/1/17 and 9/21/17.  Guardianship for Richard was established September 24, 2019 and continued until his death on November 28, 2019.  PR Loren was appointed as PR of the Estate on March 9, 2020.  It was not until the Guardianship in the Legal Separation was opened in 2019 that Barbara became fully aware of the ongoing fraud, forgery and extensive financial abuse of her husband, Richard, by J had taken place.  This abuse carried over into their joint bank accounts and community property interests.

Dalynne Singleton
Gourley Law Group
Snohomish Escrow
The Exchange Connection
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dalynne at glgmail.com<mailto:dalynne at glgmail.com>
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Amy Goertz
Sent: Wednesday, August 12, 2020 12:11 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Reopening 2004 Probate

Good morning,

I am taking on a new case in which the client’s brother, decedent died in Spokane in 2004. He was unmarried, no kids, and had a home in Spokane and a one-third interest (with his siblings) in Idaho property that was gifted to them by their parents. He had no Will. Mom pre-deceased but Dad was living at the time.

Client’s other brother opened a probate in Spokane County. The records show the probate was opened, Notice of Appointment filed, Affidavits of Mailing filed, and an Affidavit of Publication filed in July 2004. Then nothing.

In 2006, the Clerk sent out a Motion to Dismiss for Want of Prosecution.
In 2007, Clerk’s Order of Dismissal was filed.

In 2011, an Order of Destruction of file was entered.

Apparently while the probate was open, the brother PR sold the decedent brother’s house and pocketed the money. No distributions were made. Since the decedent was intestate, the money should have gone to their father.

Father died in 2007. He had a trust, of which the new client is the Trustee. She says, “I need help!”

Generally, I would have thought that because this was so long ago, the statute of limitations would have passed on regaining the probate assets. However, can an argument be made that the probate remains incomplete it is still ongoing? I am thinking we would re-open the 2004 probate, have the PR removed and start an ancillary probate in Idaho to deal with that property. Any thoughts other than this is going to be messy?

Thanks in advance for your input.

Amy

Amy J. Goertz, J.D.
Goertz & Lambrecht PLLC
amyjgoertz at icloud.com<mailto:amyjgoertz at icloud.com>

1.888.926.2607 phone
1.877.684.1627 fax
Address for correspondence:
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Spokane, WA 99203

Additional office locations:
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Edmonds, WA 98020

Goertz & Lambrecht PLLC
www.goertzlambrecht.com<http://www.goertzlambrecht.com/>

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