[WSBAPT] Creditor's Options

Tue Aug 30 19:57:41 PDT 2022

Thanks, Andrekita.  There is no judgment yet.  Given that no probate has been commenced, who would be the correct parties to name as defendants in the action?  Would you still name the estate of the deceased as a defendant?  If so, who would you serve on behalf of the estate?  It seems like the simple answer is the wife, but I suspect that there is a specific procedure by which this scenario is addressed.

Samuel M. Meyler

Meyler Legal, PLLC 

1700 Westlake Ave. N., Ste. 200

Seattle, Washington 98109

Tel:  206.876.7770

Fax:  206.876.7771

Email:   <mailto:samuel at meylerlegal.com> samuel at meylerlegal.com

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Andrekita Silva
Sent: Tuesday, August 30, 2022 7:37 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Creditor's Options

Law Office of
F.ANDREKITA SILVA
_______________________________________________________  

August 30, 2022

Samuel,

It sounds like you are saying the home was purchased during the marriage and so, it is community property.
Driving a car as you go about your life would 99.999 % be found to have a community purpose, so the community would be liable for husband’s tort.

The creditor may go after community real property (RCW 26.16.040)  to satisfy the community obligation/ debt.  As H died 2 years ago, it sounds like surviving spouse might have small separate property interest-  presumably she has been making payments on the property  (even though it is 100% hers now, the court would look to see what portion was community at the time of husband's death.  If this car accident were found to be a separate tort (which is unlikely under the family car doctrine), then the creditor could only go after the tortfeasor husband's 1/2 interest in community property. 

If the insurer never reduced the agreement for payments to a judgment, then the insurer can do that. The statute of limitations on a contract for money is 6 years, so the insurer has 6 years from the date of the last payment to seek a judgment.

If there is already a judgment, then insurer can seek to collect by any lawful means, i.e., writ of garnishment on wages, writ of garnishment on bank accounts. Insurer could seek a writ of execution against the house and sell it to get their money, too.  However, to do that, they would have to first establish that there is no personal property available to satisfy the judgment. They would do that through a supplemental proceeding.

andrekita
Law Office of F. Andrekita Silva
1325 Fourth Avenue, Suite 2000
Seattle, Washington 98101
206-224-8288
www.seattle-silvalaw.com <http://www.seattle-silvalaw.com> 

Quoting samuel at meylerlegal.com <mailto:samuel at meylerlegal.com> :

Listmates,

Here is the scenario: Decedent causes a car accident in 2016, admits fault and enters into an agreement with the other/injured party’s insurer to make payments over time.  Decedent passes away on 8/17/2020.  Decedent was married and wife continues to live in the family home which has equity in it.  Probate was never opened.  What options does the insurer have to pursue collection of the outstanding balance?  What procedures would the insurer have to follow?  Thanks for your input. 

Samuel M. Meyler

Meyler Legal, PLLC 

1700 Westlake Ave. N., Ste. 200

Seattle, Washington 98109

Tel:  206.876.7770

Fax:  206.876.7771

Email:   <mailto:samuel at meylerlegal.com> samuel at meylerlegal.com

NOTICE:

This electronic message contains information which may be Confidential or Privileged and constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act 18 USC 2510. The information is intended to be for the use of the individual or entity named above.  If you are not the intended recipient, please be aware that any disclosure, copying, distribution or use of the contents of this information is prohibited.  If you received this transmission in error, please notify the sender and delete the copy you received together with any attachments.  Thank you.

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