[WSBAPT] Decree of Distribution vs. Declaration of Completion of Probate

Tue May 12 09:37:41 PDT 2020

I have served as Administrator with non-intervention powers in insolvent estates.  The statute allows for this…  little known fact to most commissioners.
The court can REAFFIRM the grant of non-intervention powers.  So, you don’t have to give up the non-intervention powers all the time in insolvent estates.  Just so you know.

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>…

Dalynne Singleton
Gourley Law Group
Snohomish Escrow
The Exchange Connection
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dalynne at glgmail.com<mailto:dalynne at glgmail.com>
Website:  www.glglawgroup.com

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Chad Horner
Sent: Monday, May 11, 2020 5:44 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] FW: Decree of Distribution vs. Declaration of Completion of Probate

I don’t think you can get around unpaid creditors through a Declaration of Completion.

First, normally you would not have nonintervention powers in an insolvent estate, and therefore you would not be able to close the estate via a simple Declaration of Completion. But RCW 11.68.080(2) does theoretically allow the court to reaffirm nonintervention powers in an estate that has become insolvent. So, it’s possible to have nonintervention powers and an insolvent estate, but it’s rare.

Second and most importantly, the Declaration of Completion must state under penalty of perjury “that each creditor's claim which was justly due and properly presented as required by law has been paid or otherwise disposed of by agreement with the creditor, and that the amount of estate taxes due as the result of the decedent's death has been determined, settled, and paid.” RCW 11.68.110(1)(d). So, no, you can’t avoid creditors that way.
Chad Horner
CURRAN LAW FIRM
555 West Smith Street
Kent, WA 98032
T 253 852 2345
F 253 852 2030
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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 Jeanne Dawes
Sent: Monday, May 11, 2020 5:02 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] FW: Decree of Distribution vs. Declaration of Completion of Probate

Chad, that seems to be the consensus – thanks.

Do you see any advantage to the PR with regards to unpaid creditors who have not released their claim in an insolvent estate by filing a Declaration of Distribution over a Declaration of Completion of Probate?

Jeanne

Jeanne J. Dawes
Attorney at Law
Gore & Grewe, P.S.
103 E. Indiana Avenue, Suite A
Spokane, WA 99207-2317
Voice:  509-326-7500
Fax:      509-326-7503
jjdawes at goregrewe.com<mailto:jjdawes at goregrewe.com>

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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Chad Horner
Sent: Monday, May 11, 2020 4:52 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] FW: Decree of Distribution vs. Declaration of Completion of Probate

I did not mean to suggest that by filing a petition for a decree of distribution that creditors or claimants who were properly dealt with during the probate could resurrect a claim after the claim period or the 2 year statute of limitations had run. They cannot. But the publication requirement gives constructive notice to anyone who might have an interest in the closing of the probate and who would not otherwise be required to receive actual notice.

Regardless, if you are asking for a decree of distribution (as opposed to proceeding via the normally preferred route of a declaration of completion), publication seems required by RCW 11.68.100(2), even for those PRs who have obtained nonintervention powers:

When the estate is ready to be closed, the court, upon application by the personal representative who has nonintervention powers, shall have the authority and it shall be its duty, to make and cause to be entered a decree….Either decree provided for in this section shall be made after notice given as provided for in the settlement of estates by a personal representative who has not acquired nonintervention powers.”
Chad Horner
CURRAN LAW FIRM
555 West Smith Street
Kent, WA 98032
T 253 852 2345
F 253 852 2030
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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 Candace Wilkerson
Sent: Monday, May 11, 2020 3:48 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] FW: Decree of Distribution vs. Declaration of Completion of Probate

I second Paul’s questions.

Candace Wilkerson

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 Paul Neumiller
Sent: Monday, May 11, 2020 3:33 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Decree of Distribution vs. Declaration of Completion of Probate

But, it was my understanding that the Notice to Creditors was the protection for the creditors.  It is counter-intuitive (not always a good indication of interpretation of the law) to have the statute of limitations run after the filing and publication of the Notice to Creditors and then have to give the creditors notice again ---what?---years later when the probate closes?  What if a PR didn’t publish at the close of probate?  Does that somehow resurrect the creditor’s claim?

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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 Chad Horner
Sent: Monday, May 11, 2020 3:16 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Decree of Distribution vs. Declaration of Completion of Probate

I have always assumed that the publication requirement is to give notice (at least constructive) to potential creditors and those who have provided services to the estate, not only heirs and beneficiaries. So, I always publish in the rare case I have to file a petition for a decree of distribution.
Chad Horner
CURRAN LAW FIRM
555 West Smith Street
Kent, WA 98032
T 253 852 2345
F 253 852 2030
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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 Paul Neumiller
Sent: Monday, May 11, 2020 3:02 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Decree of Distribution vs. Declaration of Completion of Probate

By publication?  That was the question.  I am also interested in the answer because I have either had all of the beneficiaries waive the notice or give them notice by mail.  I have never published notice.

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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 Sarah McCarthy
Sent: Monday, May 11, 2020 2:41 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Decree of Distribution vs. Declaration of Completion of Probate

When the estate beneficiaries are provided a Final Receipt that states that they have received their full distributive share of the estate, they waive claims against the PR and against the estate, etc.... just include in that document a waiver of notice of the filing of the Declaration of Completion, and a waiver of right to request an accounting.
If all beneficiaries have waived notice, then you can just go ahead and file the Declaration of Completion.  Otherwise, yes,  a Notice of Filing of Declaration of Completion is needed.

Sarah

Sarah O’Farrell McCarthy

(Pronouns: she / her)
Attorney | Kelly, Arndt & Walker, Attorneys at Law, PLLP
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On Mon, May 11, 2020 at 1:09 PM Jeanne Dawes <jjdawes at goregrewe.com<mailto:jjdawes at goregrewe.com>> wrote:
Dear Listmates:

I have had feedback from some attorneys who have indicated notice by publication is not required if a PR has nonintervention powers, and elects to close the estate using one of the two alternative decrees set out in RCW 11.68.100, (one without accounting, one with). The publication requirement set out in RCW 11.76.040 (which is how RCW 11.68.100(2) specifies notice is to be given)

I’ve read two articles, which may be from the same source, one was the 10th Annual KCBC Probate CLE on closing probate, and one on the KCBC website about how to close probate – both of which indicated that if you have nonintervention powers and elect to close using one of the two petition methods in RCW 11.68.100, you must give 20-day notice by both mailing and publication (one-time publication at least 20 days prior to hearing).

On the other hand RCW 11.68.090(1) addressing the powers of PR with nonintervention powers, states “. . . a PR acting under nonintervention powers may exercise the powers granted to a PR under chapter 11.76 RCW [Settlement of Estates without nonintervention powers] but is not obligated to comply with the duties imposed on PRs by that chapter.”  (I’m not sure whether this includes the duty to give notice.)

So, my question is – Must you give 20-day notice by publication when using one of the alternative decrees authorized in RCW 11.68.100, when your PR has been granted nonintervention powers?
Jeanne J. Dawes
Attorney at Law
Gore & Grewe, P.S.
103 E. Indiana Avenue, Suite A
Spokane, WA 99207-2317
Voice:  509-326-7500
Fax:      509-326-7503
jjdawes at goregrewe.com<mailto:jjdawes at goregrewe.com>
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