[WSBAPT] Intestate succession or escheat?

[Roger Hawkes]

Eric. You have all this in your human memory; right?

Roger Hawkes, WSBA # 5173
Hawkes Law Firm and Sultan Lawyers
19944 Ballinger Way NE, Shoreline, WA 98155 and
423 Main, Sultan, WA 98294
206 367 5000
360 799 6438

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Eric Nelsen
Sent: Wednesday, July 21, 2021 11:09 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Intestate succession or escheat?

The WSBA’s EP, Probate, and Trust Administration Deskbook refers to the statute as though it applies in all circumstances where a stepchild could inherit in order to avoid escheat upon the death of the surviving spouse. The only early case I can find that cites the statute is In re Smith’s Estate, 49 Wn.2d 22 (1956), which mentions it but doesn’t have a holding relevant to its terms.

Most recent case is In re Estate of Ray, 15 Wn.App.2d 353 (Wash.App. Div. 1, 2020). Again the holding isn’t relevant to the question, because the appellant there was a child of the decedent’s first wife, but that marriage ended in divorce and the appellant’s mother was still living—thus there was no passing of property from his mother to the decedent at all, whether by gift, will, or intestacy. The appellant was arguing that he should still inherit because the general legislative scheme was to allow stepchildren to always inherit in order to avoid escheat. (He lost.) But as with the WSBA Deskbook, Ray again talks about the statute as if it made no distinction between testacy and intestacy. It’s just dicta but it’s something I suppose.

If there’s any hope of getting an explanation, I think you’d have to go back to review the old Remington’s Revised Statute, RRS § 1356-1, that appears to be the source of the current statute. Since the statute appears to have been wholly re-enacted in Laws 1917, and RRS was first published in 1932, this might be a dead end.

Another possibility is to search Ballinger’s Code of 1897, to see if it has such a statute. It contains cross-references to codes of other states with similar provisions. (Thanks to Kelly Kunsch and his exhaustive explanation and description of early codes at 12 UPS Law Review 285 (1989).)

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 Eric Nelsen
Sent: Wednesday, July 21, 2021 9:45 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Intestate succession or escheat?

Josh—Honestly, I don’t know. I agree that the statute appears to literally say that, but I would want to dig into the legislative amendments and find some kind of extended discussion of the statute before I was certain.

The intent of it seems pretty clear, to give the children of a first marriage their inheritance if their parent dies before the second spouse and the second spouse has no heirs. Given that purpose, it doesn’t make much sense to me to make a distinction between testacy, intestacy, and inter vivos gifts, and then make it only apply under testacy and for inter vivos gifts. Both of those scenarios imply that the parent intended to give to the second spouse and disinherit the children; so why would the statute reverse that? Whereas intestacy can easily happen by accident, which seems to be a more appropriate scenario for the statute to make sure the order of death doesn’t accidentally disinherit the kids from the first marriage.

All of which means, I’d want to look at the whole legislative history and try to figure out when and why this statute was enacted in the first place.

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 Josh Grant
Sent: Tuesday, July 20, 2021 12:26 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Intestate succession or escheat?

Jayne, or Eric?  Do you agree that if there is no will that it doesn’t apply?
Josh
Joshua F. Grant
[advocates]
P. O. Box 619
Wilbur, WA 99185
509 647 5578

From: Jayne Gilbert
Sent: Monday, July 19, 2021 9:53 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Intestate succession or escheat?

I have researched/read this Statute, but have not considered it's
application to a fact pattern like the one posed in the question

Most Interesting!

On Mon, Jul 19, 2021 at 9:49 PM Jayne Gilbert <jgilbertatty at gmail.com<mailto:jgilbertatty at gmail.com>> wrote:
Eric spot on as usual!

I too never knew this statute existed.

Thanks!

On Wed, Jul 14, 2021 at 4:10 PM Josh Grant <jgrant at accima.com<mailto:jgrant at accima.com>> wrote:
Thanks Eric,
I have never seen this statute.
I wonder in my case where there are no wills, whether or not that would preclude our use of this statute.   “.....leaving a will whereby all or substantially all of the deceased's property passes to the surviving spouse ...”
Josh

Joshua F. Grant
[advocates]
P. O. Box 619
Wilbur, WA 99185
509 647 5578

From: Eric Nelsen
Sent: Wednesday, July 14, 2021 3:59 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Intestate succession or escheat?

It’s hard to believe, but there’s a statute for that, RCW 11.04.095<https://app.leg.wa.gov/RCW/default.aspx?cite=11.04.095>, that covers if stepmom died without any heirs:

RCW 11.04.095<http://app.leg.wa.gov/RCW/default.aspx?cite=11.04.095>
Inheritance from stepparent avoids escheat.
If a person dies leaving a surviving spouse or surviving domestic partner and issue by a former spouse or former domestic partner and leaving a will whereby all or substantially all of the deceased's property passes to the surviving spouse or surviving domestic partner or having before death conveyed all or substantially all his or her property to the surviving spouse or surviving domestic partner, and afterwards the latter dies without heirs and without disposing of his or her property by will so that except for this section the same would all escheat, the issue of the spouse or domestic partner first deceased who survive the spouse or domestic partner last deceased shall take and inherit from the spouse or domestic partner last deceased the property so acquired by will or conveyance or the equivalent thereof in money or other property; if such issue are all in the same degree of kinship to the spouse or domestic partner first deceased they shall take equally, or, if of unequal degree, then those of more remote degree shall take by representation with respect to such spouse or such domestic partner first deceased.

The problem is that the wife almost certainly has collateral heirs, even if she had no siblings. If her parents had siblings, it’s virtually certain there’s an odd cousin or twelve who are entitled to the estate, as issue of the decedent’s grandparents. RCW 11.04.015(2)(e)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.04.015>.


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 Josh Grant
Sent: Wednesday, July 14, 2021 3:16 PM
To: wsbar trust <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Intestate succession or escheat?

I have a PC whose Dad died in 2011 and then his Dad’s wife died in 2012 leaving no children.  Neither H or W had a will.  There is/was a CP house.  PC wants to inherit the house.
I don’t think there are any heirs of the wife, like parents, siblings or nephews or nieces, & she never had children; but that would take an investigator to figure out.
But does it matter to PC?  Because his dad’s wife inherited  100% of the house by intestate succession instantly, if there are no heirs located or known, wouldn’t this escheat to the state?
This is not a valuable house and there are no funds to hire an investigator.
Joshua F. Grant
[advocates]
P. O. Box 619
Wilbur, WA 99185
509 647 5578
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--
*************************************************
Jayne Marsh Gilbert
Gilbert and Gilbert Lawyers, PS
(360) 336-9515
*************************************************


--
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Jayne Marsh Gilbert
Gilbert and Gilbert Lawyers, PS
(360) 336-9515
*************************************************
________________________________
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