[WSBAPT] PR Duty to Respond to Potential Creditors?

[Diane J. Kiepe]

Eric,

I think you are spot on.  Thanks for the read - I'll save this one.

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 <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Eric Nelsen
Sent: Wednesday, July 15, 2020 11:14 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] PR Duty to Respond to Potential Creditors?

Others answered on the creditor notice issue and I agree with them.

On the CIR issue, the non-spouse partner has no statutory right to notice because the case law is clear that when a statute says "spouse or domestic partner" it means only a lawful spouse or a state-registered domestic partner, and not a committed intimate partner. That said, the PR is going to have to deal with the CIR partner, so it's probably a good idea to at least keep open a channel of communication and provide courtesy copies of documents that seem relevant.

A CIR partner's claim to an equitable division of "community-like" property is not subject to the creditor claim process; it is more of an inventory issue. The PR ultimately has to take a stance, in the inventory, on what property belonged to the decedent. Because the CIR survivor does not inherit, the CIR survivor will be intensely interested in determining what belongs to the decedent and what belongs to the survivor.

That said--with a CIR relationship and substantial assets involved, there is a reasonable likelihood that some kind of transaction between the partners during life could be construed as a general debt owing to the survivor that would be subject to the creditor claim process. So the CIR survivor is likely a "reasonably ascertainable creditor" and it might be best, in most circumstances, to serve them with the Notice to Creditors and foreclose that possibility.

The full duties re equitable division of community-like property when one partner is deceased aren't spelled out in case law yet, but I generally think that the PR should evaluate what assets are community-like, and if possible work with the surviving CIR partner to determine an equitable division. It's clear that the Estate must determine an equitable division as part of the inventory process. If they can't agree on an equitable division, then the PR may need to start a TEDRA to get court approval of a proposed division.

Note that "equitable division" has not been well-defined yet, in the context where one of the CIR partners is deceased. The normal factors for equitable division are drawn by analogy from the divorce statute, which has a lot of factors looking to the financial situation and prospects of each spouse going forward. Obviously those factors, which are central in a divorce "equitable division," aren't present for the deceased party to a CIR division. (This situation doesn't arise in divorces because a divorce action terminates automatically at death and, the parties remain married, and the inheritance statutes will govern transfer of property from the decedent.)

The legal procedure also isn't settled yet, I don't think. I haven't had to do this yet, but my preliminary thought is that it should be equally valid to address in either of two ways: by a TEDRA action as an inventory issue, or by a standard "division of CIR property" lawsuit as any family lawyer would do. TEDRA is probably a faster method, but if there are a lot of disputed assets and a need for extensive discovery then perhaps the standard litigation track would provide more room and time for addressing all issues.

Some relevant cases:
Olver v. Fowler 161 Wn.2d 655, 168 P.3d 348 (2007)
In re Estate of Langeland (Drown v. Boone), 177 Wn.App. 315, 312 P.3d 657 (2013), review denied, 180 Wn.2d 1009 (2014), and second appeal after remand decisions, In re Estate of Langeland, 195 Wn.App. 74, 380 P.3d 573 (2016)

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<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Nicholas Pleasants
Sent: Tuesday, July 14, 2020 6:43 PM
To: wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] PR Duty to Respond to Potential Creditors?

Hello fellow probate practitioners,
I have a couple probate hypotheticals for consideration.
First situation: Let's say a creditor was provided Notice to Creditors, the 4-months since publication has passed and the 30-days from delivery to creditor has passed. Now creditor sends a letter asking for a copy of the Notice to Creditors. I don't want to restart the RCW 11.40.030 clock, giving them another month to respond. Does PR have a duty to respond to this potential creditor at all?
Second situation: Let's say decedent may have been in a meretricious relationship. Is the non-spouse partner entitled to any notice of the probate? Let's say non-spouse is not mentioned in the Will at all, not a co-owner of decedent's real property, but possibly there is some tangible personal property owned together. How about notice to creditors as a potential claimant? Obviously PR does not want to encourage potential claimant, and only wants to provide notice as strictly required by statute. Also wondering whether non-spouse partner has any right to request special notice?
I realize that second situation is a bit trickier, as the interplay between Committed Intimate Relationship doctrine and Probate is interesting. I am curious from a notice standpoint what responses you might advise PR to give in these situations. Thanks in advance for any experience you can share.

Best,
Nick

Nicholas Pleasants
Pleasants Law Firm, P.S.
2300 130th Ave NE, Suite A-101
Bellevue, WA 98005-1755
(425) 615-7070 tel/fax
nick at pleasantslaw.com<mailto:nick at pleasantslaw.com>
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