[WSBAPT] Requirement for Death Cert in Probate

[Eric Nelsen]

Interesting. I guess it has been a while since I filed a probate in Snohomish County. The separate declaration thing I just do not get. What is the point of that when the petition itself is verified? Or I assume that sufficient facts could be incorporated into the petition to satisfy the requirement?

Also, is that an actual local rule, or is it just a uniform practice among the commissioners?

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of G. Geoffrey Gibbs
Sent: Thursday, February 10, 2022 12:47 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Requirement for Death Cert in Probate

Snohomish County is pretty uniform between all the commissioners that a death certificate or some other information (usually in declaration form) is needed.  This would apply not only to probates but to certain other types of action (e.g., new minor guardianships where parent is deceased).

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G. Geoffrey Gibbs

Anderson Hunter Law Firm

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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 Inge Fordham
Sent: Thursday, February 10, 2022 11:55 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Requirement for Death Cert in Probate

I agree with Eric on the verified petition and our duties as officers of the court.  Unfortunately, not all courts agree.  I attempted to file a petition in Pierce County recently where a family needed to commence probate before the death certificate was issued.  The petition was kicked back and the Commissioner specifically requested a death certificate.  Different Commissioners may have different standards (at least in Pierce Co.).  Kind of like filing in the Auditor's Office.... It really depends on who you get and their subjective belief as to what evidence is "enough."  You would think a rule such as this would be uniform (and evidentiary standards as well) but application and interpretation varies.

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From: <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> on behalf of Eric Nelsen <eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>>
Reply-To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Date: Thursday, February 10, 2022 at 11:48 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Requirement for Death Cert in Probate

In King County I have had mixed experience with this, but only recently. I never had a petition bounced for it until a few years ago. Now, if it's Judge Shaffer, my petition gets bounced if I don't provide separate proof of death. But I think she is the only one who has done that. I just re-submit with a declaration that I'm not filing a death cert but I have other information (contact with or receipt from funeral home, or some other evidence that the person truly has died) confirming that the person has in fact died.

On the issue in general, I'm not aware that there has ever been formal rule, statewide or in any county that I practice in (mostly King and Snohomish, a little Pierce in the past), that required submission of a death certificate to start a probate. So far as I know, this whole issue cropped up maybe 6-8 years ago when suddenly I started hearing from some practitioners in King County about being asked for one. Maybe Snohomish County as well? But I don't think it was a rule and in my experience it wasn't coordinated or consistently applied; as I said, I never provided a death certificate for many years, either in prepping docs as a paralegal (since 1994) or as a lawyer (since 2001).

As an evidentiary matter a probate has always required a verified petition, and the petition generally includes a recital that the person died on date X in place Y as a resident of place Z. We are bound by CR 11 to our due diligence plus RPC 3.3(f) heightened duty when presenting ex parte, and the client is signing under penalty of perjury, so that verified petition all by itself is valid evidence of death that the Court is perfectly entitled to accept as sufficient. And I think that, if the Court grants the submitting lawyer the dignity of assuming that they're meeting their professional diligence requirements, the Court should take the petition as sufficient evidence, and not require a separate declaration or a copy of the death certificate.

I do not think we should be required to interrogate our client, or distrust them, to the point that we must have a death certificate. Especially since they are often delayed these days. Lots of times there is plenty of circumstantial evidence that a death has occurred-obituary or death notice published, or even just contact with multiple family members, or even the client's say-so coupled with their behavior that is clearly consistent with a genuine loss and a genuine effort to contact other family members and start getting things in order. I don't think this even requires special inquiry with the client; perfectly routine questions for other purposes, such as costs of disposition and funeral arrangements, can silently also provide sufficient corroborating evidence.

It doesn't mean that we could never be deceived; but we're not required to be infallible. Our duty is not to definitively prove that a person is dead; we just have to be confident we've met CR 11 and RPC 3.3(f).

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 Heather de Vrieze
Sent: Thursday, February 10, 2022 10:59 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Requirement for Death Cert in Probate

Yes, King County has required proof of death, in the form of an attorney affidavit or death certificate for several years now. I am not aware of any change to that requirement. I generally use the option of an affidavit I sign indicating what my evidence of death is (death certificate, conversation with ME or funeral home, etc.).

Heather

Heather S. de Vrieze
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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 Dalynne Singleton
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To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Requirement for Death Cert in Probate

I recently opened a King County probate and the Commissioner returned my papers indicating "he needed proof of death" even though Petition was verified by the mother of the decedent.
So, I prepared a declaration and submitted it with cremation receipt, then the order was signed and Letters issued.

Dalynne Singleton
Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street / PO Box 1091
Snohomish, WA 98291
360.568.5065
360.568.1717  fax
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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 Tom Westbrook
Sent: Thursday, February 10, 2022 10:08 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Requirement for Death Cert in Probate

Thanks, Dalynnne. Good info.

Best Regards, Tom

Sent from my Verizon, Samsung Galaxy smartphone
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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 Dalynne Singleton <dalynne at glgmail.com<mailto:dalynne at glgmail.com>>
Sent: Thursday, February 10, 2022 8:33:17 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Requirement for Death Cert in Probate


This is true but you do need proof of death which has usually been to provide the death certificate with redacted SSN.  It is a negative rule - most local court rules do not require death certificates to open probate.



But, given the slow nature and difficulty of receiving WA death certificates of late, I now prepare a Declaration and provide the court with proof of death in another way - cremation receipt, funeral home/memorial confirmation/receipt, newspaper or obituary, etc.  If none of those, a Declaration of next of kin as to the death can usually suffice.



Dalynne Singleton

Gourley Law Group

Snohomish Escrow

The Exchange Connection

1002 10th Street / PO Box 1091

Snohomish, WA 98291

360.568.5065

360.568.1717  fax

dalynne at glgmail.com<mailto:dalynne at glgmail.com>

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As we face the challenges presented by COVID-19, Attorney/client meetings will be handled by teleconference or virtually whenever possible.  Be assured that we will continue to advise & support our clients throughout this health emergency.  If you would like to set a Zoom or telephone conference with me, please call or email my paralegal theresa at glgmail.com<mailto:theresa at glgmail.com>, dara at glgmail.com<mailto:dara at glgmail.com> or cameron at glgmail.com<mailto:cameron at glgmail.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 Tom Westbrook
Sent: Wednesday, February 9, 2022 12:56 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Requirement for Death Cert in Probate



Greetings all, it is my understanding that we no longer have a state wide requirement to have a death certificate to open a probate proceeding. Can someone please confirm this and point me in the right direction for authority.

Sincerely,

Tom



Thomas J. Westbrook

Attorney at Law



<<...>>

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