[WSBAPT] Probate notice to heirs

Thu Mar 4 14:11:22 PST 2021

True, but instructions work best when all parties are before the court.  Impossible here.

The goal is to protect your client from getting sued for negligence and, in turn, getting your office impleaded as an additional defendant in the suit against the PR.

Instructions are better than nothing because it shows that you are trying.  But no one, including the court, has a crystal ball.  I've had the court look at me as a petitioner for instructions, blink a few times, and ask "What do you recommend?"  That's not a transcript that will provide much protection.

  -Bruce

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of G. Geoffrey Gibbs
Sent: Thursday, March 4, 2021 1:48 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Probate notice to heirs

One might, in these circumstances, petition the court "for instruction".

G. Geoffrey Gibbs | Anderson Hunter Law Firm
2707 Colby Avenue, Ste. 1001  Everett, WA  98201
PO Box 5397, Everett, WA  98206-5397
Phone: (425) 252-5161 | Fax: (425) 258-3345
ggibbs at andersonhunterlaw.com<mailto:ggibbs at andersonhunterlaw.com>
 www.andersonhunterlaw.com<http://www.andersonhunterlaw.com/>
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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 Bruce Moen
Sent: Thursday, March 4, 2021 1:42 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Probate notice to heirs

I've had this issue and the related issue of providing notice of a hearing on final distribution.  I've had several cases with 50-100 heirs in the family tree and very difficult to locate.

The statute says to serve or mail to an "address known" for that heir.  The statute has no instruction for circumstances when addresses are not known.

I see the issue as meeting the standard of care for a PR in exercising due diligence.

For closing an estate with dozens of heirs scattered across the nation or the world, I recite the difficulties encountered and my efforts to locate them and ask for a Finding of Fact that my efforts were reasonable and meet the standard of care required of a PR.  This is no guarantee that a lost heir may appear years later and sue the PR for negligence, but the Order saying that the PR did a good job would be an Exhibit that your carrier can use in defending against the lawsuit.

Similarly, what to do about the Notice of Pendency?  Failing to locate the missing heir will deprive them of the opportunity to bring a Will Contest. The lack of notice deprives them of due process per In re Martin Little Estate.  I unsuccessfully resisted the reopening of the estate in the Little case  The action to reopen was by heirs who failed to be located by the then PR. The estate had been closed for ten years.  The heirs could not be located by the PR who had made some efforts, but the efforts of the PR were not well documented.

Consequently, I suggest detailed documentation of the efforts: asking the family, asking friends and neighbors, Google searches, hire a professional heirs search with a written report to submit to the court.  The jail record searches sound good, but I'd let a professional do it.  Reduce all of the search efforts to writing and include a narrative in your interim reports. Ask for a finding that your client did a good job as a diligent PR.

  -Bruce Moen

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 Chad Horner
Sent: Thursday, March 4, 2021 9:59 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Probate notice to heirs

Meagan,

If you have truly exhausted all reasonable efforts to locate these heirs, including hiring an heir search company, I'm curious what others would think about asking the court to appoint a probate guardian ad litem to receive the notice of appointment and look out for the interests of the missing heirs. It's not a perfect solution. The missing heirs are not technically "incapacitated" under RCW 11.76.080 and 11.88.010, but it might be a way of dealing with this situation.
Chad Horner
CURRAN LAW FIRM
555 West Smith Street
Kent, WA 98032
T 253 852 2345 / D 253 239 1511
F 253 852 2030
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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 Meagan Rourke
Sent: Thursday, March 4, 2021 9:38 AM
To: wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Probate notice to heirs

Seeking advice about providing notice of appointment to heirs who cannot be located and might be incarcerated. Decedent died testate and the Will names his son (our client) as Personal Representative. Decedent has two other sons who are disinherited in the Will - Decedent had a restraining order against them and our client believes that one or both of them might be incarcerated. Our client is not in contact with his two brothers at all and does not know their whereabouts.

We have searched for the brothers in the WA Department of Corrections, the Federal Bureau of Prisons, and several of the County Jails, but neither of them came up. We are not even sure if the brothers are in WA. What else do we need to do in order to satisfy due diligence to locate the brothers to send them notice of our client's appointment? Do a deeper inmate search and publish notice of some sort? Use an heir search company? We have not encountered this situation before, so any advice would be greatly appreciated - thanks in advance!

Best regards,

Meagan S. Rourke
Associate Attorney
Ostrem Law, PLLC
8905 Roosevelt Way NE
Seattle, WA 98115
Phone:  (206) 906-9302
Fax:  (866) 444-8109
Email: meagan at ostremlaw.com<mailto:meagan at ostremlaw.com>
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