[WSBAPT] Different PR for ancillary probate?

[Eric Nelsen]

For what it's worth, I think it's okay but the WA probate might end up needing to do more than just the real estate, if no AZ probate is commenced. "Ancillary" probate is not really a legally-defined thing, I discovered some years back in wrangling over dismissal of a Washington probate when a probate had already been started in another state.

Procedurally, a probate is always a full probate, and "ancillary" is just shorthand for a probate started in a state regarded as secondary to the "main" location of decedent's assets. In your case, there is unquestionably property located in Washington that the Arizona probate can't affect: the Washington real property. So starting a probate is reasonable.

Once started, it has the same duties and procedural rules as any other full probate, and has the same scope of in rem jurisdiction, so there are some continuing conflicts-of-law questions about which of the WA and AZ probates should administer mobile assets like bank accounts or investments accounts. Probates in separate states will have overlapping in rem jurisdiction over some mobile assets, and the administrative conflict has to be resolved, hopefully by cooperation between the PRs. If there is no AZ probate in existence, then arguably the WA probate should administer all property that its jurisdiction can reach; conflict of laws does not apply because there's no existing probate in AZ. The PR has a duty to settle the whole estate, or everything that PR can reach anyway. RCW 11.48.010, RCW 11.48.020.

Which state's laws of inheritance apply is a mostly-separate question from jurisdiction. Generally, I think that the law of the decedent's domicile should control inheritance as to any assets that the decedent's domicile state can jurisdictionally reach. I assume when you say decedent was a "resident" of AZ that means he was domiciled there. (Per case law, domicile is the home state where one intends to permanently live, while one can have multiple residences in multiple locations. In Re Estate of Tolson, 89 Wn.App. 21, 36, 947 P.2d 1242 (1997).) While I haven't researched it, I think that also means that AZ's rules of inheritance should control as to all assets that AZ's jurisdiction can reach; and WA rules of inheritance would apply only to assets excluded from AZ's jurisdiction such as the WA real property. But again, that's off the top of my head-it might take some research to confirm where the line is drawn. It could mean that you would have a WA probate applying WA inheritance law to the WA real estate and AZ inheritance law for all other assets.

I have encountered the additional issue of notice to creditors, when there are probates in two states. It seems wrong to give creditors two bites at the apple; but conversely, it seems wrong for the estate to possibly play keep-away with its assets by asserting, say, that a creditor claim filed in WA can't be fulfilled from assets like bank accounts that could be administered under either the WA or AZ probate, but are likely administered under the AZ probate under conflicts of law principles.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
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Seattle WA 98144-3909
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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 Randolph Petgrave
Sent: Tuesday, September 15, 2020 10:23 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Different PR for ancillary probate?

Listmates,

I wanted to get some input from the brain trust on this.  Facts:  Decedent is a resident of Arizona and is survived by a wife and two adults sons from a prior marriage.  Decedent owns separate property (real estate) in Washington State, where his sons live.  Decedent dies intestate.  No probate has been started in either state.

Son wants to know if he can start (what would otherwise be the ancillary) probate in Washington to start disposing of the house, without owning the whole probate process in Arizona as well.  I guess my question is can he be PR in Washington, and let the surviving spouse be PR in Arizona if she chooses to probate there?

Relationships are good, so getting SS consent won't be a problem, and they understand intestate succession means the sons only get ½ of the separate property.

Thanks for your collective help.
Randy


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