[WSBAPT] Pro Se Litigant & Questionable Objection to Declaration of Completion of Probate

[Joshua McKarcher]

I think the new statute applies no matter what – simple as that – see section 4027 on the very last page:

Sec. 4027. (1) Sections 4003 through 4017, 4023, 14 and 4024 of this act apply to all probate estates, regardless of whether the probate action commenced before or after the effective date of this section. (2) Section 4026 of this act applies to all accounts established under chapter 11.114 RCW, regardless of whether the account was established before or after the effective date of this section.

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Eric Nelsen
Sent: Friday, August 13, 2021 3:12 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Pro Se Litigant & Questionable Objection to Declaration of Completion of Probate

RCW 11.68.110 just changed substantively on July 25 (see section 4014 of http://lawfilesext.leg.wa.gov/biennium/2021-22/Pdf/Bills/Session%20Laws/Senate/5132.SL.pdf), which means you are trapped in the limbo of determining retroactive effect. Before July 25, the law said you can file an objection in the probate matter, and it strongly implies it’s the PR’s obligation to set it for hearing if such an objection is filed. Now, the objection has to be a separately filed TEDRA petition and it’s not the PR’s job to set it for hearing. (I don’t know the answer re retroactivity, I’m just being “helpful” by complicating the situation further. Sorry about that.)

Under the old rules, an objection could demand an “accounting” of the Estate. The pro se objection referring to “misused the inheritance” could be construed by the court to be an inartful demand for accounting.

I would throw the dilemma into the client’s lap. Explain the two options and the costs/risks involved with each, and let the client decide. My kneejerk inclination is to close and defend later if need be, but I don’t know the personalities involved here so it’s difficult to assess the risk. In all events I’d want the client’s buy-in to that option: the client has to understand that if they need to defend themselves afterward, they’ll be paying for their defense out of their own pocket; whereas if they do the accounting etc. to get court approval and discharge, the estate would pay for all that because it’s clearly the PR doing work in discharge of their duties.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

Covid-19 Update - All attorneys are working remotely during regular business hours and are available via email and by phone. Videoconferencing also is available. Signing of estate planning documents can be completed and will be handled on a case-by-case basis. Please direct mail and deliveries to the Seattle office.

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 David Faber
Sent: Friday, August 13, 2021 2:40 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Pro Se Litigant & Questionable Objection to Declaration of Completion of Probate

Good afternoon,

I'm working a probate estate and just about ready to close the estate. I filed a Declaration of Completion and served it on the beneficiaries of the estate with notice under RCW 11.68.110(3). With a few days left in the 30 day period to file a petition seeking an accounting, two of the beneficiaries (representing themselves) filed a pleading they titled "Notice of Objection" which says, in full, "We object to the lack of communication and the manner in which the personal representative disposed of all the our mothers, family personal belongings and misused the inheritance left for all of us." [sic]

RCW 11.68.110(2) expressly states "unless an heir. . . petitions the court [for one of two potential orders]. . . within 30 days of filing a declaration of completion of probate, the personal representative will be automatically discharged without further order of the court. . ."

The beneficiaries have clearly failed to meet the express written requirements of RCW 11.68.110(2) because they did not petition the court for either potential order, instead just noting their objection. Because they are pro se, however, I'm always worried that the court might look negatively on me ignoring them based upon their technical ignorance/defects. That said, if I were to note this up for a hearing, I think I'd be breaching my ethical obligations to my client and probably committing malpractice by waiving our defense to their clearly defective pleading.

I'm writing the list to ask whether anyone has any advice for the proper way to proceed/address such an issue? I do not want to open the door for the beneficiaries to get a bite at the apple that they wouldn't otherwise have, but I also don't want to direct my client to make final disbursement of the estate assets once the 30 day clock has run only to then have my client (and me) smacked by the court for not being conciliatory to pro se litigants. My gut is that I should do the latter: ignore, direct disbursement, and defend my client on the basis that no petition was filed if ever I have to defend them, but I just want to suss out whether anyone thinks differently or has other ideas.

Any thoughts?

Best,
David J. Faber
Faber Feinson PLLC
800 Polk Street, Suite B
Port Townsend, WA 98368
(360) 379-4110

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