[WSBAPT] Probate Notice Sent to Creditor but Collection Agency Responds

[Joshua McKarcher]

Jeff,

I vote yes, assuming this is an ordinary, valid, uncontested debt in a solvent estate. In fact, I vote you can just pay it and be done with it.

First, the creditor claim period is 4 months, not 90 days, and those receiving "actual notice" have until the LATER of 30 days from service/mailing date of your notice and the 4 month deadline. RCW 11.40.051(1)(a). (I send my actual notices about 45 days before the publication deadline so I don't hurt my brain trying to figure it all out. They all then just have "until the 4 month deadline.")

Next, I think the fair reading of RCW 11.40 would make this separate legal entity to which the credit card company has assigned its claim a different, separate creditor that is NOT on notice. So upon receiving the collector's statement (in "their form") they have become a reasonably ascertainable creditor. (See "correspondence received after the date of death" in RCW 11.40.040(1).) They are thus entitled to specific notice; and a "new" 30 days if your 4 month deadline comes earlier.

Or, instead of sending them a notice and seeing if they file formally, the PR of a solvent estate can simply pay the claim if it is known and valid, and dispense with all the formalities (and formality's attendant costs). See RCW 11.40.070(4), which is a very sensible addition to the statute.

In a solvent estate with known debts, it is my view that costing the estate money to go through the hoops above to see if the creditor will "pass the test" is not usually in the estate's best interest. Assuming the claim was known and valid; assigned; and noticed up to you or your PR in some form before the relevant deadlines, then, if valid, it should be paid. I think RCW 11.40.070(4) properly balances the relevant considerations.

Going back to a discussion on this list previously about duties owed to creditors or beneficiaries, this is where I balance the PR's duty to the beneficiaries of a solvent estate with the clear rights of creditors of solvent estates. If you received that collection letter after the expiration of the 4 month period, or if the estate was insolvent, then this analysis may be different. But I do not think "actual notice" to the original debt holder is a solid bar to the timely, pre-deadline presentment of a demand for payment by an assignee, and I wouldn't want to hang my hat on the argument that it is.

All the best, Josh

Joshua D. McKarcher
McKarcher Law PLLC
537 6th Street
Clarkston, WA 99403
(509) 758-3345
(509) 758-3314 (fax)
josh at mckarcherlaw.com



From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Jeff Davis
Sent: Monday, November 2, 2020 3:02 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Probate Notice Sent to Creditor but Collection Agency Responds

Listmates,

We provided a Probate Notice to Creditors directly to a credit card company in September, 2020.  We recently received a standard collection letter from a collection company to whom the credit card company had assigned the account.  No creditor's claim was filed or served on me.  The 90 day period from the first publication of notice is fast approaching.  Question, do I need to send the probate notice to creditor to the collection company?   Your thoughts 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/>

The information contained in this e-mail message may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any dissemination, distribution, or copying is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at info at bellanddavispllc.com<mailto:info at bellanddavispllc.com>  or call 360.683.1129

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