[WSBAPT] Known Creditor Missing Claim Deadline

Wed Oct 13 13:46:18 PDT 2021

The affidavit of diligence is based on 11.40.040(3). I will generally have the Personal Representative sign the affidavit described to “evidence the review and resulting presumption” that comes from following the law. It is mostly a protection against the unknown creditors who might come forward, having not been given direct notice.

RCW 11.40.040<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.040>
"Reasonably ascertainable" creditor—Definition—Reasonable diligence—Presumptions—Petition for order.
(1) For purposes of RCW 11.40.051<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.051>, a "reasonably ascertainable" creditor of the decedent is one that the personal representative would discover upon exercise of reasonable diligence. The personal representative is deemed to have exercised reasonable diligence upon conducting a reasonable review of the decedent's correspondence, including correspondence received after the date of death, and financial records, including personal financial statements, loan documents, checkbooks, bank statements, and income tax returns, that are in the possession of or reasonably available to the personal representative.
(2) If the personal representative conducts the review, the personal representative is presumed to have exercised reasonable diligence to ascertain creditors of the decedent and any creditor not ascertained in the review is presumed not reasonably ascertainable within the meaning of RCW 11.40.051<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.051>. These presumptions may be rebutted only by clear, cogent, and convincing evidence.
(3) The personal representative may evidence the review and resulting presumption by filing with the court an affidavit regarding the facts referred to in this section. The personal representative may petition the court for an order declaring that the personal representative has made a review and that any creditors not known to the personal representative are not reasonably ascertainable. The petition must be filed under RCW 11.96A.080<http://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.080> and the notice specified under RCW 11.96A.110<http://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.110> must also be given by publication.

Heather

Heather S. de Vrieze
Attorney-at-Law
[cid:image004.jpg at 01D7C038.B1967C50]
3909 California Avenue SW
Seattle, WA 98116-3705
(206)938-5500
heatherd at westseattlelaw.com<mailto:heatherd at westseattlelaw.com>
www.westseattlelaw.com<http://www.westseattlelaw.com/>
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Inge Fordham
Sent: Wednesday, October 13, 2021 12:43 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Known Creditor Missing Claim Deadline

I’m interested in the contents of an affidavit of diligence.  We file a declaration of mailing of notice to known creditors (to establish that actual notice was provided).  We also file a declaration of personal representative regarding ascertaining creditors.  Is there something more that we should be filing?  I haven’t yet run into a situation where a known creditor failed to make a claim but would like to be prepared if/when it happens.

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Inge A. Fordham | Attorney
Fordham Law, PLLC
3218 Sixth Avenue | Tacoma, WA 98406
Office: (253) 348-2657 | Mobile: (206) 778-3131
www.fordhamlegal.com<http://www.fordhamlegal.com>

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From: <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> on behalf of Laura Latta <laura at lauralatta.com<mailto:laura at lauralatta.com>>
Reply-To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Date: Wednesday, October 13, 2021 at 12:24 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Known Creditor Missing Claim Deadline

Thank you, Heather. It's very helpful to know others have navigated similar situations successfully. We will definitely file the affidavit of diligence.
Warmly,
Laura

On Wed, Oct 13, 2021 at 12:10 PM Heather de Vrieze <heatherd at westseattlelaw.com<mailto:heatherd at westseattlelaw.com>> wrote:
I have credit cards miss deadlines all the time, sometimes they’ll even call and ask if they can get paid; when I tell them the estate has enough money to pay claims submitted so far, but we don’t have a claim from them, they tell me they don’t plan to submit a claim.

Every card, every client situation different. It is why we go through this process, so the client can have assurance that this will not be a problem for them later. Make sure to file an affidavit of diligence indicating when the creditors were given direct notice.

Heather

Heather S. de Vrieze
Attorney-at-Law
[cid:image007.jpg at 01D7C038.B1967C50]
3909 California Avenue SW
Seattle, WA 98116-3705
(206)938-5500
heatherd at westseattlelaw.com<mailto:heatherd at westseattlelaw.com>
www.westseattlelaw.com<http://www.westseattlelaw.com/>
Click here to connect with de Vrieze | Carney on Facebook:   [FB Logo] <https://www.facebook.com/DeVriezeCarney>

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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 Laura Latta
Sent: Wednesday, October 13, 2021 11:51 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Known Creditor Missing Claim Deadline

Listmates,
This is a first in my practice and I'd appreciate your suggestions and experience. A major credit card company, a known creditor to whom we mailed the Notice to Creditors, has not submitted a  claim within the claim period. I'm wary of advising the client to proceed as if this claim is barred simply because I am unused to credit card companies missing the deadline.

Have you experienced this before? What steps/action can I take to ensure we are on firm ground before advising my client that any subsequent claim is barred?

I know the claims statute has a procedure for obtaining a judicial determination that the PR has conducted a reasonable search for unknown creditors, but am not aware of anything similar for getting a judicial determination that a known creditor is time barred (other than receiving, denying, and adjudicating a late claim). Is this perhaps more common than I realize?

All your thoughts and experience are appreciated.

Warmly,
Laura

--
Laura Latta
Law Office of Laura Latta PLLC
she/her

Phone (206) 841-2344
www.LauraLatta.com<http://www.LauraLatta.com>

PO Box 82356

Kenmore, WA 98028

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Laura Latta
Law Office of Laura Latta PLLC
she/her

Phone (206) 841-2344
www.LauraLatta.com<http://www.LauraLatta.com>

PO Box 82356

Kenmore, WA 98028

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