[WSBAPT] Petition for Instructions

Thu Nov 5 07:17:56 PST 2020

For what it's worth, I did this very thing a few years ago in Snohomish
County, very same issue - we filed it within the existing probate cause,
noted up a hearing and gave all parties notice.  Commissioner signed the
order, no problem, nobody argued it should be filed separately.

Sarah

*Sarah O’Farrell McCarthy*

*(Pronouns: she / her)*Attorney | Kelly, Arndt & Walker, Attorneys at Law,
PLLP
6443 Harding Avenue | P.O. Box 290 | Clinton, WA  98236
Phone: (360) 341-1515 | Fax: (360) 341-3272
sarah at kawlawyers.com | www.kawlawyers.com

This electronic message transmission contains information from the law firm
of Kelly, Arndt & Walker, PLLP which may be confidential or privileged.
This information is intended to be for the use of the individual or entity
named above,  If you are not the intended recipient, be aware that any
further review, disclosure, printing, copying, distribution, or use of the
contents of this transmission is prohibited. If you have received this
electronic message transmission in error, please notify us immediately by
reply e-mail and delete the original message.  Thank you.

We do not accept service of any kind by e-mail unless expressly authorized
in writing by the attorney of record.  This e-mail is NOT a contract and is
not binding upon the author pursuant to CR 2A. This e-mail is, at most, a
negotiation under ER 408.

On Wed, Nov 4, 2020 at 9:35 AM Eric Nelsen <Eric at sayrelawoffices.com> wrote:

> Practically speaking I would want to treat that as a petition within the
> probate itself, and give notice to all parties. However, I think the
> statute may technically appear to require a separate action under TEDRA.
> The issue of substituting a new charity for one named in the Will is
> probably "the determination of any class of...devisees, legatees" and/or
> "the determination of [a] question arising in the administration of the
> estate [including without limitation]...(i) the construction of wills"
> which are "matters" under TEDRA. RCW 11.96A.020(2), subsecs. (a) and (c)(i).
>
>
>
> I think it makes little sense to file such a thing as a separate action;
> it's counterproductive and potentially misleading to have to track down
> multiple case numbers for instructions to a PR, or determine who is to
> receive property under the will.
>
>
>
> Re filing TEDRA always as a separate action: I investigated this at one
> point, and discovered that I think this is an unfortunate effect of the
> statewide clerk's association unknowingly working at cross-purposes to the
> original intent of the law. The statute, RCW 11.96A.090(2)
> <https://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.090>, formerly
> allowed filing TEDRA petitions within the probate OR as a separate action,
> and I think that was intentional, so that things like removal of a PR could
> be handled with TEDRA procedures directly under the relevant cause number.
>
>
>
> But the clerk's association lobbied to have it amended to always require a
> separate action, because it was an administrative headache in some fashion
> to have an action filed within a probate case, and collect another filing
> fee, and track it as a litigation matter, etc.. The only person testifying
> in committee was from the clerk's association in support of the bill; there
> was no opposition. I doubt that the RPPT section or anyone else was even
> aware of it, or if they were aware, it seemed innocuous at first glance. So
> it got amended, and the original intent has been impaired somewhat by
> always having to file in a separate action. See Laws 2013, c 246 sec. 2
> <http://lawfilesext.leg.wa.gov/biennium/2013-14/Pdf/Bills/Session%20Laws/Senate/5135-S.SL.pdf?cite=2013%20c%20246%20%C2%A7%202>
> .
>
>
>
> I think that TEDRA was really supposed to allow a
> proceeding-within-a-probate, kind of like an adversary proceeding inside a
> bankruptcy, to standardize the process for bringing a contested matter in
> front of the judge. But I don't think it is very clear when it should be
> used or not used even for something arguably within the rather vague
> definition of "matter," and the 2013 amendment forcing separate actions has
> really confused things even more. For example, a petition for a family
> support award is now technically supposed to be a separate action. RCW
> 11.54.090
> <https://app.leg.wa.gov/RCW/default.aspx?cite=11.54&full=true#11.54.090>.
> Clearly that was not the original intent; but the 2013 change to RCW
> 11.96A.090(2) leads to that result.
>
>
>
> Sincerely,
>
>
>
> Eric
>
>
>
> Eric C. Nelsen
>
> Sayre Law Offices, PLLC
>
> 1417 31st Ave South
>
> Seattle WA 98144-3909
>
> 206-625-0092
>
> eric at sayrelawoffices.com
>
>
>
> *Covid-19 Update - *All attorneys are working remotely during regular
> business hours and are available via email and by phone; please call the
> Seattle office. Videoconferencing also is available. Signing of estate
> planning documents can be completed and will be handled on a case-by-case
> basis; please call the Seattle office.
>
>
>
> MAIL AND DELIVERIES can be received at the Seattle office. For any other
> needed arrangements, please call the Seattle office.
>
>
>
> *From:* wsbapt-bounces at lists.wsbarppt.com <
> wsbapt-bounces at lists.wsbarppt.com> *On Behalf Of *Sarah Duncan
> *Sent:* Wednesday, November 4, 2020 8:55 AM
> *To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> *Subject:* [WSBAPT] Petition for Instructions
>
>
>
> Hello list mates.   I am filing a Petition for Instructions in Snohomish
> County under the Cy Pres doctrine (RCW 11.96A.127) to ask the court to
> redirect the charitable share of a Will where the charity is no longer in
> existence.
>
>
>
> My question is whether we can file our petition under our same probate
> cause number and set a hearing on the Commissioner’s calendar, or whether
> we need to file it a separate TEDRA petition and set a hearing on the
> Judge’s civil motions calendar?
>
>
>
> Does anyone know?
>
>
>
> Thanks,
>
> ___________________________________________
>
> Sarah E. Duncan
>
> Attorney
>
> Adams & Duncan, Inc., P.S.
>
> 3128 Colby Avenue
>
> Everett, WA 98201
>
> (425) 339-8556
> ***Disclaimer: Please note that RPPT listserv participation is not
> restricted to practicing attorneys and may include non-practicing
> attorneys, law students, professionals working in related fields, and
> others.***
> _______________________________________________
> WSBAPT mailing list
> WSBAPT at lists.wsbarppt.com
> http://mailman.fsr.com/mailman/listinfo/wsbapt
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20201105/e4a7ce47/attachment.html>