[WSBAPT] Filing Probate to Commence Personal Injury Action

Tue Mar 17 10:11:49 PDT 2020

Jeff:

There is no limited probate for insurance purposes in Washington.  I tried this several years ago and the Commissioner told me--it is always a full probate in Washington.  I have seen other attorneys get away with opening estates but in my opinion, this is not proper but an unknown Pro Tem or newer Commissioner signs off.  I have opened more than 50 of these types of probates, served as the deceased defendant/plaintiff Administrator or assisted tort counsel and each one is a little different with contact with the family of decedent, whether someone steps up to serve as PR/Administrator or not, dealing with defense counsel and the insurer.

For most of them, no one wants anything to do with the probate especially if a statute of limitations is about to run - defense counsel would love to bring motion to dismiss if you don't do the probate and appoint the PR/Administrator who is served with the tort litigation.  I do my best diligence in serving as PR/Administrator and am always be honest with the Court about contact, good or bad, with the decedent's family.  If there is a Will, then you need to give notice; if there is a surviving spouse, then you need to give notice and hold a hearing.  You can obtain a waiver and consent for someone else to serve from the named PR or the widow to avoid notice of hearing.  But, sometimes you have to note the hearing, no one usually shows up, and the court grants your Order with non-intervention powers and no bond usually and the PR/Administrator moves forward with accepting service of the tort litigation complaint, amended as appropriate to name PR/Administrator.  Then, defense counsel is appointed by the insurance company and besides the statutory minimum work in probate, you wait until settlement/trial in tort litigation is accomplished.  Then, you close the estate like any other non-intervention probate.

Things I have learned over the years doing these deceased defendant/deceased plaintiff probates:

  *   Pierce County requires in person hearings for all new probates filed.
  *   Snohomish County is hit and miss with non-intervention or intervention powers.  One Commissioner who remains un-named, has been especially hard to deal with in these types of probates.  She has not been granting non-intervention powers which then require publishing in order to close the probate and a mandatory hearing as well which to me is not warranted.
  *   Have someone besides you handle the probate who has experience with these types of cases.  That person can contact the family, do the probate from beginning to end.  The PR/Administrator will then deal with the insurance carrier and defense counsel as they will be the defendant in the tort litigation.
  *   There is a two year statute in probate for creditor's claims BUT it is extended to a three year statute if you are only seeking liability insurance limits.
  *   If you are able to name a co-defendant in the tort litigation and serve the co-defendant, the statute is protected allowing for extra time to open the deceased co-defendant probate.

Give me a call if you wish to discuss the ins and outs further.

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 Jeff Davis
Sent: Tuesday, March 17, 2020 9:14 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Filing Probate to Commence Personal Injury Action

Listmates;

I believe there was a string about this not to long ago, but now the issue is before me.  A PI attorney has asked I help in opening two probates so personal injury actions can be started against the estates (with the reality only the insurance policies will pay).  The "defendants" have been dead for over a year and no probates were ever started.  One had a Will which was filed with the Court.  The other may or may not have a Will, but none was filed.  My question is the process.  Can I just go in ex parte, as the creditor, and open the probate?  Do I have to give advance notice to heirs?  I obviously do not know who they are.  Plus, as the probate is only to allow for the injury suit, does one have to do a full blown probate, with an inventory, notice to creditors?  The latter duties seem impractical as we have no access to asset and liability information  and of course any heir is a bit hostile  to our position.  I looked at Title 11 but nothing jumped out at me for guidance.    Your help would be appreciated.

Jeff Davis

W. Jeff Davis, Esq.
BELL & DAVIS PLLC
P.O. Box 510
Sequim WA 98382
Phone No.:(360) 683.1129
Fax No.: (360) 683.1258
email: info at bellanddavispllc.com<mailto:info at bellanddavispllc.com>
www.bellanddavispllc.com<http://www.bellanddavispllc.com/>

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