[WSBAPT] Creditor's Options

Wed Aug 31 07:00:26 PDT 2022

Susan is correct except if there are claims in tort, then 3 years applies b/c the statute specifically allows claims against the insurance company between 2-3 years of death.
If within the time limits, you open the probate and appoint an administrator.

RCW 11.40.060<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.060>:  Claims involving liability or casualty insurance—Limitations—Exceptions to time limits.  The time limitations for presenting claims under this chapter do not accrue to the benefit of any liability or casualty insurer. Claims against the decedent or the decedent's marital community that can be fully satisfied by applicable insurance coverage or proceeds need not be presented within the time limitation of RCW 11.40.051<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.051>, but the amount of recovery cannot exceed the amount of the insurance.

I have opened more creditor probates in the last few years but you have to make certain claims within the statute of limitations.
Here is the statute:
RCW 11.40.051<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.051>
Claims against decedent—Time limits.
(1) Whether or not notice is provided under RCW 11.40.020<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.020>, a person having a claim against the decedent is forever barred from making a claim or commencing an action against the decedent, if the claim or action is not already barred by an otherwise applicable statute of limitations, unless the creditor presents the claim in the manner provided in RCW 11.40.070<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.070> within the following time limitations:
(a) If the personal representative provided notice under RCW 11.40.020<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.020> and the creditor was given actual notice as provided in RCW 11.40.020<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.020>(1)(c), the creditor must present the claim within the later of: (i) Thirty days after the personal representative's service or mailing of notice to the creditor; and (ii) four months after the date of first publication of the notice;
(b) If the personal representative provided notice under RCW 11.40.020<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.020> and the creditor was not given actual notice as provided in RCW 11.40.020<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.020>(1)(c):
(i) If the creditor was not reasonably ascertainable, as defined in RCW 11.40.040<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.040>, the creditor must present the claim within four months after the date of first publication of notice;
(ii) If the creditor was reasonably ascertainable, as defined in RCW 11.40.040<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.040>, the creditor must present the claim within twenty-four months after the decedent's date of death; and
(c) If notice was not provided under this chapter or chapter 11.42<http://app.leg.wa.gov/RCW/default.aspx?cite=11.42> RCW, the creditor must present the claim within twenty-four months after the decedent's date of death.
(2) An otherwise applicable statute of limitations applies without regard to the tolling provisions of RCW 4.16.190<http://app.leg.wa.gov/RCW/default.aspx?cite=4.16.190>.
(3) This bar is effective as to claims against both the decedent's probate and nonprobate assets.

Dalynne Singleton
Gourley Law Group
Snohomish Escrow
The Exchange Connection
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Susan Donahue
Sent: Tuesday, August 30, 2022 8:21 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Creditor's Options

I don’t have any citations for this, but I believe a creditor can open a probate to make a creditor claim but it has to be within 24 months from the death if the decedent.

Susan Donahue.
Sent from my iPhone

On Aug 30, 2022, at 8:06 PM, samuel at meylerlegal.com<mailto:samuel at meylerlegal.com> wrote:

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:  samuel at meylerlegal.com<mailto:samuel at meylerlegal.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 Andrekita Silva
Sent: Tuesday, August 30, 2022 7:37 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto: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
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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:  samuel at meylerlegal.com<mailto:samuel at meylerlegal.com>

NOTICE:

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