[WSBAPT] Intestate succession or escheat?

Wed Jul 21 21:20:58 PDT 2021

It looks like Ray can be distinguished from this case/
fact pattern, because you're dealing with a divorcee
and a stepchild.

As opposed to the first spouse being married to the
decedent at Spouse #1's time of death.

I think Smith's Estate would control-unless it's been
overturned. Older statute, but same fact pattern.

On Wed, Jul 21, 2021 at 1:39 PM Josh Grant <jgrant at accima.com> wrote:

> Thanks Eric.  I agree that it should apply to intestacy.
> Josh
>
> *Joshua F. Grant*
> [image: advocates]
> P. O. Box 619
> Wilbur, WA 99185
> 509 647 5578
>
> *From:* Eric Nelsen
> *Sent:* Wednesday, July 21, 2021 11:08 AM
> *To:* WSBA Probate & Trust Listserv
> *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
>
>
>
> *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 *Eric Nelsen
> *Sent:* Wednesday, July 21, 2021 9:45 AM
> *To:* WSBA Probate & Trust Listserv <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
>
>
>
> *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 *Josh Grant
> *Sent:* Tuesday, July 20, 2021 12:26 PM
> *To:* WSBA Probate & Trust Listserv <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*
> [image: 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>
> 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> 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*
> [image: 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
>
>
>
> *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 *Josh Grant
> *Sent:* Wednesday, July 14, 2021 3:16 PM
> *To:* wsbar trust <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*
> [image: advocates]
> P. O. Box 619
> Wilbur, WA 99185
> 509 647 5578
> ------------------------------
>
> ***Disclaimer: Please note that RPPT listserv participation is not
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>
>
>
>
> --
>
> *************************************************
>
> Jayne Marsh Gilbert
>
> Gilbert and Gilbert Lawyers, PS
>
> (360) 336-9515
>
> *************************************************
>
>
>
>
>
> --
>
> *************************************************
>
> Jayne Marsh Gilbert
>
> Gilbert and Gilbert Lawyers, PS
>
> (360) 336-9515
>
> *************************************************
> ------------------------------
>
> ***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.***
> _______________________________________________
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> http://mailman.fsr.com/mailman/listinfo/wsbapt
>
> ------------------------------
> ***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
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> http://mailman.fsr.com/mailman/listinfo/wsbapt
>
> ***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.***
> _______________________________________________
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-- 
*************************************************
Jayne Marsh Gilbert
Gilbert and Gilbert Lawyers, PS
(360) 336-9515
*************************************************
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