[WSBAPT] WSBAPT Digest, Vol 78, Issue 12

Wed Mar 10 12:17:45 PST 2021

Heirs at law are only the heirs who actually take at time of death of the decedent; it does not include relatives further down the chain who don't inherit because someone else is the current heir. So if decedent has no spouse, no kids, no parents, and a living sibling ("issue of parent" under RCW 11.04.015(2)(c)), the living sibling inherits everything and is the sole heir at law. Cousins, who are issue of grandparents, only inherit under (2)(d) if no issue of parents survive the decedent.

By the way, I agree that Little doesn't expressly require listing the heirs in the Petition; it just requires service of notice of appointment to the heirs at law under RCW 11.28.237. I don't think it's required to provide a copy of the Will, but it certainly helps the argument that due process has been met. It brings the service within the facts of Young, 23 Wn.App. 761, 765 (1979).

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.

-----Original Message-----
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Jeff at bellanddavispllc.com
Sent: Wednesday, March 10, 2021 11:35 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] WSBAPT Digest, Vol 78, Issue 12

I read the In re Estate of Little case, cited by Ms. Rydberg, but still think I do not need to list the heirs, but certainly must notify them of the probate and provide them a copy of the Will.  The Court in Little continually talks about notifying heirs, not necessarily requiring them be listed in the Petition.  However, that ruling and Mr. Sullivan's comment raises the question as to how far down the list of heirs must be notified.  I have a surviving sister, an only sibling, from whom I obtained the names and address of 1st and 2nd cousins.  The parents are dead.  Do I need to send notice to second cousins who will not take if the Will is invalidated?

Jeff

-----Original Message-----

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 John J. Sullivan

Sent: Wednesday, March 10, 2021 11:19 AM

To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>

Subject: Re: [WSBAPT] WSBAPT Digest, Vol 78, Issue 12

Footnote: I do vaguely recall a case that says the only time there’s a remedy for missing the 20 day deadline on sending the Notice is where it results in actual harm.

So ... if the heir had a legitimate will contest claim the court might toll the four month SOL. But not automatically.

Sent from my iPhone

> On Mar 10, 2021, at 11:14 AM, John J. Sullivan <sullaw at comcast.net<mailto:sullaw at comcast.net>> wrote:

>

> I don’t believe the SOL on will contests is tolled by failure to provide the Notice of Appointment. I just had a client who was an “illegitimate” heir discovered through commercial DNA system receive Notice a year later when the four months is long expired. The heir wouldn’t have a claim anyway, but I don’t see a statutory condition of the four months running that Notice be sent out.

>

> To be fair, I had long assumed it did, and I think the PR’s attorneys gave the right advice to mail Notice in that case. Also, it appears they were in compliance with the Notice requirement, assuming they only became aware of the heir later. The decedent had been aware, but did not mention the heir in the will.

>

> Am I missing something?

>

> John J. Sullivan

>

> Sent from my iPhone

>

>> On Mar 10, 2021, at 10:28 AM, jcrspicatto at gmail.com<mailto:jcrspicatto at gmail.com> wrote:

>>

>> Jeff,

>>

>> All intestate heirs must be listed in the Petition and given notice.

>> They have standing to challenge the validity of a Will that

>> disinherits them; the

>> 4 month statute of limitations to do so only starts when they are given

>> notice of the probate proceeding.   Listing them in the Petition as

>> disinherited but intestate heirs, is an allegation of such by your client.

>> That allegation becomes res judicata, claims preclusion only if they

>> are alleged and given notice.  See In re Little, 127 Wn App 915, 113

>> P 3rd 505 (Div 1, 2005).

>>

>> Jenny Rydberg, JD

>> 206-550-5491

>>

>> -----Original Message-----

>> 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>>

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>> Sent: Tuesday, March 9, 2021 12:00 PM

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>> Subject: WSBAPT Digest, Vol 78, Issue 12

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