[WSBAPT] Minor probate questions

Wed Jun 3 11:25:43 PDT 2020

Hi Suzanne-Welcome to the listserv and welcome to probate practice! I just saw Mark Vohr's responses and I agree with him, but my own thoughts are:

Short answer is, she should definitely get an administration started since her son inherits everything, but I think she cannot use any Estate money to pay anything unless a GAL agrees it's a good idea for the son's benefit and the court approves the plan. The mortgage, utilities, etc., are not Estate debts so there is no basis for using the Estate money to pay them. The Administrator of the Estate would have no authority to pay such debts.

I do not think the mother should expect the son to receive use of any Estate funds until the probate is complete-though there are some possible exceptions:

I would affirmatively ask for a GAL to be appointed at the time the probate is started, because I'd need their assistance if there is any need or desire to make early partial distributions of estate funds for the son's benefit. No UTMA account, or any access/use of funds for non-Estate administration purposes, is possible without a GAL's approval and the court's approval.

Once the Estate is ready for final distribution, mom and GAL can collaborate on a plan on what is appropriate use/preservation of the son's inheritance.

One additional thought-assuming ex-husband was unmarried at time of death, his minor child can petition for a family support award per RCW 11.54.010(1)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.54&full=true#11.54.010>. This might be a way to use some Estate money while the probate administration is pending, to support the son. Again it would need GAL review though.

If ex-H was paying child support, I think the family support award might be a good way to argue that the son should receive $X per month in "support" from the Estate in lieu of child support. I haven't done that before, but I think it's a good fit for the circumstances. That might be a way to set up a UTMA account early, to receive the support award.

Re the procedure questions: Apply for appointment as administrator and ask for appointment of a GAL at the same time. I would either not ask for non-intervention powers (NPs) initially, or if I ask I'd expect to be denied without prejudice, because the GAL needs to review and opine on any petition for NPs, per RCW 11.76.080(2)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.76.080> (referring to RCW 11.68.041). Nothing about the actual estate funds will be decided at the first hearing on appointment of Administrator and GAL, because (a) the Administrator needs to start the basic probate duties of compiling an inventory, ascertaining creditors, etc.; and (b) the GAL needs time to investigate and develop an idea about what is best for the son and sole heir. I don't see a reason to limit the scope of the GAL, as you have a number of potential matters that the mom might want the GAL to address, and putting a limit on scope of work might just get in the way and cause more expense to get the order modified. (Though it might be prudent to include some kind of initial limit on number of hours the GAL can expend without going to the court to ask for more time, to prevent burning a hole in the inheritance from GAL fees.)

Once appointed the PR will have access to the funds, but only for Estate purposes, to take care of Estate administrative expenses. Typically, best for the PR to just open a bank account in name of the Estate and put it all there.

Having a GAL doesn't have to extend the probate process timeline. You'll likely be waiting around for months anyway, waiting for the creditor claim period to expire, so there is plenty of time to develop a plan for distribution that the GAL will approve.

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 Suzanne Lieberman
Sent: Wednesday, June 3, 2020 10:14 AM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] Minor probate questions

Hello,

I have a client whose ex-husband passed away in Seattle last year without a will. They had one child together who is now 12. Decedent had no other family apart from aunts and uncles in Greece. Client wants to open probate for her son and potentially be the administrator, but wants to know if she can use any of the assets ($370k in a bank account) to pay for the mortgage, utilities for the house where she and her son live.

It looks like we need to get approval from the GAL to figure out what we can do with the assets. Can we also put some of the funds into a UTMA with our client as custodian for e.g. future education held in trust until he reaches 18, and what are the limits on how can those funds be used? Would setting up a UTMA require GAL approval and is that something that is decided as part of the probate GAL hearing or can that be decided later? Does the decision re earmarking of all the funds need to be decided at the hearing? If so, can there be modifications later (with GAL approval)?
Can the probate GAL and administrator appointment issues both be considered at same time/hearing? If not, I'm assuming the administrator hearing would happen first?
Can our client get access to the funds after the GAL probate hearing, i.e. around 17 days from when process started?

Since there is only one type of asset, would this qualify for an order for a probate GAL with limited power to investigate certain narrow issues, or would we need a full one? Would there be any disadvantages to a limited probate GAL?

If we do the GAL appointment and administrator appointment at the same time or around the same time, how long does the GAL process add to the usual probate timeline of 6 months?

Thank you! Sorry for bombarding you with so many questions on my first day of this listserv! Your help on any of them would be greatly appreciated. I am still relatively new to estate planning/probate.

Sincerely,

Suzanne Lieberman
CMS Law Firm LLC<http://cmslawfirm.com/>
811 Kirkland Ave. Suite 201 (please note new address!)
Kirkland, WA 98033
206.659.1512

Legal stuff I have to put in... To ensure compliance with Treasury Department and IRS regulations, we inform you that, unless expressly indicated otherwise, any federal tax advice contained in this communication (including any attachments) is not intended or written by CMS Law Firm LLC to be used, and cannot be used by the taxpayer, for the purpose of: (i) avoiding penalties that may be imposed on the taxpayer under the Internal Revenue Code; or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein (or any attachments).
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