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

Fri Aug 13 16:50:52 PDT 2021

Thank you for the fantastic discussion folks. I'm inclined to agree that
the amended language in RCW 11.68.110 does not apply to my client/this
estate if only for the simple fact that we did not conform to the
strictures of the new rule, either. In order for us to hold the
beneficiaries' feet to the proverbial fire of the TEDRA filing requirement,
I would think I would at least need to have clean hands under the updated
statute. I do not! I instead filed under the old rules, and so I cannot
imagine a court finding that the rule changed midstream but our failure to
meet the new strictures is waived due to the timing of our filing. That
said, worse comes to worst, I'll throw in the argument that any objection
after July 25 should have been filed under TEDRA and see which spaghetti
sticks to the wall.

I appreciate your idea, Eric, and have done just what you suggest (which, I
think, your advice is generally good; always give your client the menu of
options and let them pick how to proceed. All I can do is explain the
potential downsides): I spoke with my client & explained to them the
options and the potential pitfalls. They agree that we should go ahead and
close the estate, and be prepared to fight back if the heirs can get around
my objections to the defects in their pleading.

Dealing with *pro se* litigants is stressful. I like things to be by the
rules on a Friday afternoon!

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

*** NOTICE: ATTORNEY CLIENT COMMUNICATION - PRIVILEGED & CONFIDENTIAL.
This communication may contain privileged or other confidential
information. If you are not the intended recipient, or believe that
you have received this communication in error, please do not print,
copy, retransmit, disseminate, or otherwise use the information. Also,
please indicate to the sender that you have received this communication in
error, and destroy the copy you received.***

On Fri, Aug 13, 2021 at 3:55 PM Eric Nelsen <eric at sayrelawoffices.com>
wrote:

> I am not sure it’s that simple; this is the dilemma during any transition
> period between two versions of a law. That conclusion of the effect of Sec.
> 4027 would mean that all 30-day Notice of Filing of Declaration of
> Completion processes that were initiated but not fully completed by July 25
> are invalid and must be re-initiated. As a matter of due process you can’t
> send out a notice that says one thing about how to object to closure, and
> then change the law midstream to require something different. It seems
> unlikely the legislature intended to literally cancel all Declarations of
> Completion that were filed/served within 30 days of July 25.
>
>
>
> 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. 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 <
> wsbapt-bounces at lists.wsbarppt.com> *On Behalf Of *Joshua McKarcher
> *Sent:* Friday, August 13, 2021 3:26 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
>
>
>
> 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
>
>
>
> *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 <
> 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>
> *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
>
>
>
> *** NOTICE: ATTORNEY CLIENT COMMUNICATION - PRIVILEGED & CONFIDENTIAL.
> This communication may contain privileged or other confidential
> information. If you are not the intended recipient, or believe that
> you have received this communication in error, please do not print,
> copy, retransmit, disseminate, or otherwise use the information. Also,
> please indicate to the sender that you have received this communication in
> error, and destroy the copy you received.***
> ***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/20210813/e6b28a3a/attachment.html>