[WSBAPT] How much Diligence is required?

Wed Jan 12 08:50:17 PST 2022

Bruce,

Thanks for the detailed discussion of the process you have used and law to support it. Do you believe that this answer applies whether or not there is a Will? That is, if locating heirs is for notice purposes only, not for distribution under intestacy, would the same analysis and process be best practice?

Heather

Heather S. de Vrieze
Attorney-at-Law
[cid:image001.jpg at 01D80791.6BB11790]
3909 California Avenue SW
Seattle, WA 98116-3705
(206)938-5500
heatherd at westseattlelaw.com<mailto:heatherd at westseattlelaw.com>
www.westseattlelaw.com<http://www.westseattlelaw.com/>
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Bruce Moen
Sent: Tuesday, January 11, 2022 7:08 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>; 'KCBA Real Property, Probate and Trust Law Discussion List' <realpropertyprobatetrustlaw at lists.kcba.org>
Subject: Re: [WSBAPT] How much Diligence is required?

I have had this issue multiple times.

The question is what is the standard of care of a PR for a reasonable search?  The answer is always ad hoc depending upon the facts.

My own practice is to tell the court the facts, report what you (your client) have done to ascertain heirship, and ask for an adjudication that the actions of your client (personal search or hiring an heir search company to search) meet the standard.  I usually do this as the administration matures and I'm getting ready for partial distributions or a Final Report.  I ask the court for authorization to distribute consistent with the adjudication that the PR met the standard.

I do not ask for a Finding that "these are the heirs" because you may have missed someone.  If you miss an heir, it is a due process issue.  See In Re the Estate of Martin Little, 127 Wn.App. 915, 113 P.3d 505 (2005).

If you miss someone and they appear after the estate is closed, they can ask the court to reopen.  They may argue that the PR was negligent in not locating them, that the Finding of heirship is wrong, and that the former PR was negligent.  If they sue the former PR for negligence, then the former PR will sue your firm on the Trask v Butler holding.

That's why I ask only that we've discharged our duty of care.  More useful for your carrier to mount a defense if you get sued years after closing the estate.

  -Bruce Moen

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: Monday, January 10, 2022 4:17 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>; 'KCBA Real Property, Probate and Trust Law Discussion List' <realpropertyprobatetrustlaw at lists.kcba.org<mailto:realpropertyprobatetrustlaw at lists.kcba.org>>
Subject: [WSBAPT] How much Diligence is required?

I am curious about how much searching to do for potential heirs for notice only.

Decedent had a Will drafted and executed 10 years prior to her death, by an attorney, giving her entire estate to the same person she named as her Personal Representative. This beneficiary happens to be the son of her ex-husband, who was born after their relationship (so not technically his step-mom). The Will recites that decedent is single and has no children.

In searching for relatives to provide notice of the probate and appointment of Personal Representative, we have been able to determine that our decedent was an only child (at least on mom's side) whose mother died when she was a child, it appears that her mother's parents may have adopted her as she is listed in their obituaries as a surviving child and they are listed as her parents on a death certificate from 25 years ago (she was born in 1935).

So far research has uncovered these documents and obituaries, but no definite record of an adoption. It is also undetermined if her birth father had children after her mother's death. Having spent some considerable dollars investigating so far, I'm needing to advise my client about the most reasonable course of action. If he stops the research, they aren't prepared to confirm that he has exercised due diligence yet to track down heirs, and want several thousand dollars more to keep digging. This is probably the safest course of action, since if he doesn't find and notify the intestate heirs, he may have to fight this later. On the other hand, client may not want to keep spending money just so some unknown relatives can get notice that they aren't getting anything. Heirs are either biological ½ siblings (or their descendants) or descendants of adoptive siblings (biological cousins or their offspring).

Interested if anyone has experience or recent research into the issue of how much is enough (or not enough).

Heather

Heather S. de Vrieze
Attorney-at-Law
[cid:image001.jpg at 01D80791.6BB11790]
3909 California Avenue SW
Seattle, WA 98116-3705
(206)938-5500
heatherd at westseattlelaw.com<mailto:heatherd at westseattlelaw.com>
www.westseattlelaw.com<http://www.westseattlelaw.com/>
Click here to connect with de Vrieze | Carney on Facebook:   [FB Logo] <https://www.facebook.com/DeVriezeCarney>

CONFIDENTIAL & PRIVILEGED. This e-mail message may contain legally privileged and/or confidential information.  If you have received this e-mail in error, please notify the sender immediately and delete all copies of this e-mail message and any attachment.

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