[WSBAPT] Wrongful death / probate

[Jennifer L White]

Rachel,
Adding a few tidbits to what has already been said, and not in any particular order:

  *   PR is definitely the only one who has legal authority to bring the case. If there is a controversy between these parties as to whether a WD case should be pursued, which you seem to indicate may be the case, you could move to have a Limited Co-PR appointed for very defined and limited in scope duties pertaining exclusively to the WD case. The court order appointing needs to be very specific on exactly what the duties and scope is for that limited appointment. I know that is possible, though rare, because I have served in that capacity.
  *   WD cases are not TEDRA cases and are specifically prohibited to be brought under TEDRA. I had a case one time where our client was sued for WD by a firm who brought the case as a TEDRA. We got it dismissed summarily. It was over the SOL, so they couldn’t refile, and I don’t know what happened after that between them and their clients.
  *   If the PR doesn’t have nonintervention powers, then you need to get a court order authorizing the PR to proceed with the WD action.
  *   WD should be pursued by a PI firm that is experienced in handling those types of matters. They can be very expensive to litigate and be aware, the PR (as the client of the firm handling the WD) could be left with owing those costs if you don’t win, so there may need to be a written agreement in place about who pays those costs in that unfortunate event as well as who advances those costs as the case is in progress if the law firm handling the case isn’t fronting them.
  *   The estate itself may or may not have an interest in the $$. Parsing through who gets what and for what is an exercise in and of itself between the various WD/Survival statutes and case law, and beyond the scope of this listserv response.
  *   The decedent leaving their estate not to the surviving spouse is a difficulty in and of itself separate from a WD. Those are nasty to sort out. Bone up on your knowledge concerning separate and community property. It’s basically tantamount to a post-death divorce. If you represent the surviving spouse, have lots of Kleenex handy and be ready to exercise your “counselor at law” function.

Jennifer L. White, Esq.
[cid:image001.jpg at 01D7103E.AF9C6CC0]

jen at appletreelaw.com<mailto:jen at appletreelaw.com>
PO Box 11037
Yakima, WA 98909
509.225.9813

From: wsbapt-bounces at lists.wsbarppt.com <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>
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
1001 Fourth Avenue | Suite 4400 | Seattle, WA 98154
Reception: 206.577.7987 | Direct: 206.389.1744 | Fax: 206.693.4365
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