[WSBAPT] Wrongful death / probate

Tue Mar 2 15:58:34 PST 2021

The surviving spouse should be entitled to administer the CP, but depending on the time frame they may be viewed as having waived the right.  Has forty days passed since death and, if a probate was opened by non-spouse PR, was notice given to survivor?
RCW 11.28.030<http://app.leg.wa.gov/RCW/default.aspx?cite=11.28.030>
Community property—Who entitled to letters—Waiver.
A surviving spouse or surviving domestic partner shall be entitled to administer upon the community property, notwithstanding any provisions of the will to the contrary, if the court find such spouse or such domestic partner to be otherwise qualified; but if such surviving spouse or surviving domestic partner do not make application for such appointment within forty days immediately following the death of the deceased spouse or deceased domestic partner, he or she shall be considered as having waived his or her right to administer upon such community property. If any person, other than the surviving spouse or surviving domestic partner, make application for letters testamentary on such property, prior to the expiration of such forty days, then the court, before making any such appointment, shall require notice of such application to be given the said surviving spouse or surviving domestic partner, for such time and in such manner as the court may determine, unless such applicant show to the satisfaction of the court that there is no surviving spouse or surviving domestic partner or that he or she has in writing waived the right to administer upon such community property.

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Heather de Vrieze
Sent: Tuesday, March 02, 2021 3:43 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Wrongful death / probate

Not specifically my area of the law, so no cite for you, but I believe only the Personal Representative can bring the WD action. That said, if the surviving spouse so chose, they could be appointed as the Personal Representative of the CP and that might allow the surviving spouse to file without the cooperation of the child Personal Representative under the Will.

Heather

Heather S. de Vrieze
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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 Rachel Bender
Sent: Tuesday, March 2, 2021 3:19 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Wrongful death / probate

Hi all,

Spouse A prepared a Will, naming her adult child as beneficiary and specifically "cutting out" Spouse B. Child is named Personal Representative. However, there is no separate property - only community property owned by Spouse A and B together.

Spouse A dies. Spouse B wants to file a wrongful death claim on behalf of estate. Would PR still be the only person able to file a wrongful death claim even though there is no separate estate and everything now belongs to Spouse B?

I guess my question is, if there is no separate estate to manage, does the named PR still have the power to bring claims or can the surviving spouse represent estate in wrongful death claim?

I'm assuming it's still PR, but wanted to check.

Rachel R. Bender | Member, Attorney

Bender Law PLLC
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Reception: 206.577.7987 | Direct: 206.389.1744 | Fax: 206.693.4365
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