[WSBAPT] Probate for Sole Purpose of Pursuing Wrongful Death Claim

Mon Feb 10 19:48:29 PST 2020

I have opened probate for estates for wrongful death/survival claims asserting the possible claim value and solvency especially if insurance policy limits can be indicated.  Both the survival statute and the wrongful death statute claims are brought by the personal representative or the administrator even though after recovery on those claims, some of the monies go to statutory beneficiaries and some go into the estate.  You can open an estate on behalf of the proposed PR/Administrator to pursue the claims in wrongful death / survival actions.  Read the insolvency statute carefully, I have had estates opened as solvent when there are unknown other assets and debts.

An estate is insolvent if within ten days, the PR has received valid creditors claims that would appear, when added with taxes & expense, to make the estate insolvent.
If you later discover debts are more than assets, then you go back to court for an Order of Insolvency BUT the court has discretion to revoke letters with non-intervention powers.  I had this happen in Pierce County and the judge said he didn't realize it was discretionary so he let me continue as PR of the Estate with non-intervention powers - REAFFIRMING my non-intervention powers.
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RCW 11.68.080<http://app.leg.wa.gov/RCW/default.aspx?cite=11.68.080>
Vacation or restriction of nonintervention powers following insolvency-Notice-Determinations affecting prior grants of nonintervention powers upon petition-Endorsement on prior orders.
(1) Within ten days after the personal representative has received from alleged creditors under chapter 11.40<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40> RCW claims that have an aggregate face value that, when added to the other debts and to the taxes and expenses of greater priority under applicable law, would appear to cause the estate to be insolvent, the personal representative shall notify in writing all beneficiaries under the decedent's will and, if any of the decedent's property will pass according to the laws of intestate succession, all heirs, together with any unpaid creditors, other than a creditor whose claim is then barred under chapter 11.40<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40> RCW or the otherwise applicable statute of limitations, that the estate might be insolvent. The personal representative shall file a copy of the written notice with the court.
(2) Within ten days after an estate becomes insolvent, the personal representative shall petition under RCW 11.96A.080<http://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.080> for a determination of whether the court should reaffirm, rescind, or restrict in whole or in part any prior grant of nonintervention powers. Notice of the hearing must be given in accordance with RCW 11.96A.110<http://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.110>.
(3) If, upon a petition under RCW 11.96A.080<http://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.080> of any personal representative, beneficiary under the decedent's will, heir if any of the decedent's property passes according to the laws of intestate succession, or any unpaid creditor with a claim that has been accepted or judicially determined to be enforceable, the court determines that the decedent's estate is insolvent, the court shall reaffirm, rescind, or restrict in whole or in part any prior grant of nonintervention powers to the extent necessary to protect the best interests of the beneficiaries and creditors of the estate.

Dalynne Singleton
Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street / PO Box 1091
Snohomish, WA 98291
360.568.5065
360.329.4079
360.568.8092  fax
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 Lincoln Miller
Sent: Monday, February 10, 2020 4:22 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Probate for Sole Purpose of Pursuing Wrongful Death Claim

As an addendum or remark to my question, I noticed that the survival statute (RCW 4.20.046), as recently amended, states that the recovery of the economic losses is on behalf of the "estate", but the recovery of the non-economic damages is only recoverable for the benefit of the statutory beneficiaries under RCW 4.20.020.

From: Lincoln Miller
Sent: Monday, February 10, 2020 4:12 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: RE: Probate for Sole Purpose of Pursuing Wrongful Death Claim

Hi, Dalynne,

Have you been able to get non-intervention powers in the WD probates where the estate is not solvent and is being probated primarily for the WD action?

Assuming the answer is 'no', I'm presuming that you had to get court approval for entry into a contingent fee agreement?

Are there instances where the estate is entitled to a portion of the recovery such that you can build that value into the estate asset side and potentially push it into a solvent estate. The only thing I can think of is if there is pre-death pain and suffering - but the survival action statute seems to say that belongs to the statutory beneficiaries.

Lincoln

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 Dalynne Singleton
Sent: Friday, February 7, 2020 12:24 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Probate for Sole Purpose of Pursuing Wrongful Death Claim

Lincoln:  Nice to hear from you - unfortunately, WA does not have this similar statute and I have tried, trust me...  You need to open the estate, appoint the PR or Administrator and then make the claims.  The PR/Administrator needs to perform the minimum statutory requirements in the estate and when ready to close, close appropriately.

Dalynne Singleton
Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street / PO Box 1091
Snohomish, WA 98291
360.568.5065
360.329.4079
360.568.8092  fax
dalynne at glgmail.com<mailto:dalynne at glgmail.com>

LICENSED IN WASHINGTON AND OREGON
IMPORTANT/CONFIDENTIAL: This e-mail message (and any attachments accompanying it) may contain confidential information, including information protected by attorney-client privilege. The information is intended only for the use of the intended recipient(s).  Delivery of this message to anyone other than the intended recipient(s) is not intended to waive any privilege or otherwise detract from the confidentiality of the message.  If you are not the intended recipient, or if this message has been addressed to you in error, do not read, disclose, reproduce, distribute, disseminate or otherwise use this transmission, rather, please promptly notify the sender by reply e-mail, and then destroy all copies of the message and its attachments, if any.
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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 Lincoln Miller
Sent: Friday, February 7, 2020 11:55 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Probate for Sole Purpose of Pursuing Wrongful Death Claim

I understand that Oregon has a statutory procedure for opening a "single-purpose" probate for purpose of pursuing a WD claim. I've never heard of the same for Washington and want to make sure that I'm not missing anything.

Lincoln Miller

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lincoln at lincolnmillerlaw.com<mailto:lincoln at lincolnmillerlaw.com>
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