[WSBAPT] Special Notice of Proceedings and Paid Atty fees

[Eric Nelsen]

I don't have any case law that comes to mind, but the language in the statute, last line of subsection (1), is pretty stark:

If the notice has been regularly given, any distribution or payment of fees and any order or judgment, made in accord therewith is final and conclusive.

Honestly I don't know if its apparent finality has ever been tested in a reported decision. For what it's worth, all hearings/actions in probate administration generally operate on principles of due process, and parties are estopped from later challenge if they have been given proper notice and an opportunity to be heard. Some general briefing:

            A PR without nonintervention powers may at any time file interim reports "which in his or her judgment would be proper." RCW 11.76.010. An interim order in a probate that affects substantial rights is appealable under RAP 2.2(a)(3). Cf. In re Estate of Wood, 88 Wn. App. 973, 947 P.2d 782 (1997) (An order removing a PR affects sufficient substantial rights of the PR to make it appealable under RAP 2.2(a)(3)); cf. In re Million's Estate, 18 Wn.2d 824, 140 P.2d 560 (1943) (regarding appeal of an interim order denying immediate payment to creditors).
            Ordinarily interim orders in a probate are entered ex parte and without notice, and for that reason are subject to later modification at the final hearing, without need of immediate appeal. In re Krueger's Estate, 11 Wn.2d 329, 343, 119 P.2d 312 (1941). But "a sharp distinction must be drawn" between interim orders entered without notice, and final orders entered with notice. Id. at 343-344. An interested party who does receive notice and an opportunity to be heard with regard to an interim order is estopped from objecting later. See Id. at 350-351 (appellant Gostina received notice and attended the hearing on the interim order and was therefore estopped, while appellant Neff did not receive notice and so was not estopped). See also In re Estate of Walker, 10 Wn. App. 925, 932, 521 P.2d 43 (1974) ("heirs who have had statutory and actual notice of and took an active part in all of the proceedings to date...should be bound by the otherwise proper orders of the court"); cf. In re Estate of Little, 127 Wn. App. 915, 921-923, 113 P.3d 505 (2005) (heirs at law not given proper notice of a probate are entitled to re-open it).

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Paul Neumiller
Sent: Tuesday, September 21, 2021 3:57 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Special Notice of Proceedings and Paid Atty fees


Listmates:  RCW 11.28.240 allows a request for notice of certain proceedings, including the payment of atty fees by a PR.  RCW 11.28.240(1)(n) also says:  "...If the notice has been regularly given, any distribution or payment of fees and any order or judgment, made in accord therewith is final and conclusive."  OK, I remember Ricard Wills (or was it Eric?) saying that he loved when opposing counsel made the request for special notice for atty fees because if the opposing atty didn't object at the time and the atty fees were paid, then the payment was "final and conclusive" and the opposing atty couldn't object to those fees at a later date.  Anyone have any cases confirming this result?  I am atty for a PR in an estate where the request for special notice was made and I gave notice to the opposing atty of the intended payment of my atty fees to date.  After no objection, the PR brought my outstanding bill current (hurray).  Now that we are getting closer to closing the probate, opposing atty is making noises that he intends to "review the reasonableness" of my atty fees.   Any legal support for the proposition that the atty fees paid to date are "final and conclusive" and can't be challenged later?





[Paul A_ Neumiller2]




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