[WSBAPT] Opening Probate to File a Wrongful death claim

[Eric Nelsen]

Proceeds from a wrongful death claim are not Estate assets-the claim belongs to the statutory beneficiaries, all proceeds belong to the statutory beneficiaries free of any claim of the estate, and the PR is only a nominal plaintiff. Gray v. Goodson, 61 Wn.2d 319, 327, 378 P.2d 413 (1963). So I would argue it doesn't count toward solvency or insolvency, which involves only "probate and non-probate" assets. RCW 11.68.011(2)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.68.011>. Proceeds that can't be used to pay estate debts logically shouldn't be counted in determining solvency.

The decedent's personal injury action surviving per RCW 4.20.046 and/or RCW 4.20.060 is technically a part of the estate, but the case law is a muddle. Ultimately I think the PI claim is unlikely to have an impact on the solvency calculation. The decedent's special damages-medical expenses and so forth-typically are equal to the debt that has to be paid, so they zero out for purposes of determining solvency. If decedent has a special damages claim for lost wages or loss of earning potential, perhaps there would be some special damages going to the estate that don't net out against a debt-that could be factored into solvency. The decedent's general damages for pain and suffering go to the wrongful death statutory beneficiaries. RCW 4.20.046(2)<https://app.leg.wa.gov/RCW/default.aspx?cite=4.20.046>. The case law is not clear on whether these general damages are estate assets subject to estate debts, or belong directly to the statutory beneficiaries. By the logic of the cause of action, all PI damages should belong to the estate-it was the decedent's injury that is being compensated after all. But because the legislature specifically wants only the statutory beneficiaries to receive the funds, and not the estate's heirs by law or by Will, arguably the legislature means to exempt the decedent's-pain-and-suffering proceeds from being subject to estate debts.

The probate administrative process itself is unchanged. I typically do not request non-intervention powers unless I can show that the estate is solvent independent of any PI or WD claim. But "solvency" can be a very thin line. I have requested NPs in cases where the estate assets were of "nominal" value-personal possessions you might get $1 for at a garage sale-but the debts were "zero" because the family (or a personal injury firm) had committed to pay the expenses of administration and there were no creditors.

If the PR doesn't have NPs, the PR does need to get court approval of any settlement. RCW 11.48.130; SPR 98.08W<https://www.courts.wa.gov/court_rules/pdf/SPR/SUP_SPR_98_08W_00.pdf>. If there are minor or incapacitated wrongful death beneficiaries, then even a PR with NPs will need a settlement guardian ad litem appointed and will have to get court approval of the settlement. SPR 98.16W<https://www.courts.wa.gov/court_rules/pdf/SPR/SUP_SPR_98_16W_00.pdf>.

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 msafren at jennylinglaw.com
Sent: Friday, August 21, 2020 6:56 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Opening Probate to File a Wrongful death claim

Hello Colleagues:

I have been retained by a client to open probate on behalf of a deceased family member with the intention of filing a wrongful death claim against a third party.  Is there anything outside of the normal process that I should be aware of in helping the client open probate and administer the estate?

Piggybacking on this question, does the value of the claim impact the solvency of the estate? For example, if the estate is otherwise insolvent, could a viable claim be valued to effect the solvency of the estate?  If the estate is insolvent, would it still be possible to seek and obtain non-intervention powers to allow the Administrator of the estate to manage the wrongful death suit or would the Administrator have to seek authority from the Court to manage the suit and accept an offer of settlement?

If anyone has second to speak with me about some of these concerns, I would be very grateful! Thank you!

Warmest regards,

Michael S. Safren, Esq.
Attorney at Law

14900 Interurban Ave. S., Ste. 280 | Seattle, WA 98168
11900 NE 1st St., Bldg. G - Ste. 300 |  Bellevue, WA 98005
P: (206) 859-5098 | E: msafren at jennylinglaw.com<mailto:msafren at jennylinglaw.com>
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