[WSBAPT] Creditor's Options

Wed Aug 31 09:40:34 PDT 2022

Thank you Eric.  I appreciate the citations.  This is what I thought had to
happen, but I didn't have the citations at hand.

Susan

SUSAN DONAHUE

Law Office of Susan Donahue

125 West 2nd Avenue, Suite "B"

P.O. Box 81

Twisp, WA 98856

(509) 996-5944 (phone)

(509) 362-9692 (fax)

 <mailto:sdonahue at sdonahuelaw.com> sdonahue at sdonahuelaw.com

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>
On Behalf Of Eric Nelsen
Sent: Wednesday, August 31, 2022 9:07 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Creditor's Options

So the decedent's tort liability has been reduced to a contract that
provides for installment payments, is that right? I assume it is simply a
contract to make payments and it's not secured by a deed of trust or
anything like that. I will also assume that the debt is a community debt of
decedent and spouse. In that case, the creditor would have to get a probate
started so they can file a creditor claim. They can be appointed as PR per
RCW 11.28.120(6) <https://app.leg.wa.gov/RCW/default.aspx?cite=11.28.120> ,
or petition to have a 3rd party appointed. They'd have to give notice to the
surviving spouse per RCW 11.28.131
<https://app.leg.wa.gov/RCW/default.aspx?cite=11.28.131> . Once the probate
is commenced, they'd file the creditor claim and get it allowed or rejected,
and file suit if it's rejected.

The creditor cannot pursue the claim directly against the surviving spouse
without also filing a claim in the estate. Ruth v. Dight.

The estate of the first spouse to die (Spouse 1) has jurisdiction over all
community property and community debts. The death of a spouse terminates the
marital relationship and the "marital community." Bank of Montreal v.
Buchanan, 32 Wn. 480, 73 P. 482 (1903); see also Washington State Bar Assn.
Community Property Deskbook (4th ed. 2014) (hereinafter "CP Deskbook"), Sec.
4.11. At death of Spouse 1, the community "ceases to exist." Sutton v.
Hirvonen, 113 Wn.2d 1, 6, 775 P.2d 448 (1989). Spouse 1's estate accordingly
has jurisdiction over all community property and community liability, not
just the decedent's half, so as to dispose of all community matters. Ruth v.
Dight, 75 Wn.2d 660, 670, 453 P.2d 631 (1969) (claim against the community
cannot be pursued against surviving spouse if not also properly brought
against the deceased spouse's estate); Gilliam v. City of Centralia, 14
Wn.2d 523, 531, 128 P.2d 661 (1942) (deceased spouse's personal
representative, not the surviving spouse, has authority to pursue a
community claim); Magee v. Big Bend Land Co., 51 Wash. 406, 408, 99 P. 16
(1909) (administration of first spouse's estate had jurisdiction and
authority to sell the entire community real property). See also CP Deskbook,
Sec. 4.13.

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
<mailto:wsbapt-bounces at lists.wsbarppt.com>
<wsbapt-bounces at lists.wsbarppt.com
<mailto:wsbapt-bounces at lists.wsbarppt.com> > On Behalf Of
samuel at meylerlegal.com <mailto:samuel at meylerlegal.com> 
Sent: Tuesday, August 30, 2022 6:07 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com
<mailto:wsbapt at lists.wsbarppt.com> >
Subject: [WSBAPT] Creditor's Options

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

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