[WSBAPT] Definition of "heir"

[Jon Fritzler]

Thank you to all who replied.

Sincerely,
Jon M. Fritzler
Attorney at Law
717 E. 22nd St.
Vancouver, WA 98663
Tel. 360.818.4431
Eml fritzlerlaw at outlook.com<mailto:fritzlerlaw at outlook.com>

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Joshua McKarcher
Sent: Monday, June 20, 2022 6:06 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Definition of "heir"

This is absolutely correct. I am a non-litigator, and I do not assist with will contests, but with all respect, I don't know how a lawyer could comply with Rule 11 etc. without listing the sibling and his/her address in the petition (and thus also providing notice of the appointment, probate, or administration). I don't think the statutes make sense any other way. Here's why:

Until a judge has signed an order determining that x or y property is community or separate, or that A or B is entitled to 100% of the property because 100% is community -- or at minimum that A or B or C is appointed PR (empowering that PR to make such judgments and classifications in the first instance, but, even then, subject to court review for reasonableness, etc., even in a nonintervention case) -- I do not see how anyone anywhere has the authority simply to decide that all property is community and that, accordingly, other potential heirs may be divested of notice of that person's unilateral decision. This is logical and legal nonsense, to me.

Entry of an order granting relief requested in a petition presupposes - because we all are the keepers of Rule 11, etc. - that a judge must be given all the relevant information to enter a proper order. That information is not simply "all the property is community," but more like "the potential heirs are A and B, but only A takes, because there is no separate property for B to take." At least a judge knows there is a B out there somewhere who might wish to have a say in that "all decisive" assertion.

Omitting the sibling just doesn't bear out logically -- at least not under our American constitutional system of due process of law.

And notice that the Rule 11 analysis applies whether the sibling is given notice or not. It's an issue of candor to the Court and of making critical decisions in the correct order and only after being cloaked with authority even to make those decisions. (An order on a petition that states "the potential heirs are A and B, but only A takes because there is no separate property for B to take" is useless unless B is given "notice and opportunity to be heard," even if that is after-the-fact with a 4-month window as Washington permits.)

Best, Josh

Joshua D. McKarcher
McKarcher Law PLLC
537 6th Street
Clarkston, WA 99403
(509) 758-3345
(509) 758-3314 (fax)
josh at mckarcherlaw.com<mailto:josh at mckarcherlaw.com>
www.mckarcherlaw.com<http://www.mckarcherlaw.com>

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 Philip N. Jones
Sent: Monday, June 20, 2022 4:58 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Definition of "heir"

As one judge down here in Oregon once said, "Notice is the backbone of probate practice."
Notice cuts off all kinds of rights.  A good thing.
Similarly, when you get an order signed by a probate judge, the most valuable part of the order is not the judge's signature.  It is the part where you gave notice to all of the possibly interested parties and none of them objected.
Phil Jones

Philip N. Jones
Duffy Kekel LLP
900 S.W. Fifth Ave. Suite 2500
Portland, OR 97204
pjones at duffykekel.com<mailto:pjones at duffykekel.com>
(503) 226-1371 - office
(503) 853-1482 - cell
(503) 226-3574 - fax

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 Diane J. Kiepe
Sent: Monday, June 20, 2022 3:40 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Definition of "heir"

Also, always in blended marriages I assume there can and very well me a challenge so notice up.

Diane J. Kiepe

Diane J. Kiepe
Douglas Eden
717 W. Sprague Ave.
Suite 1500
Spokane, WA  99201
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>
509-455-5300

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 Diane J. Kiepe
Sent: Monday, June 20, 2022 3:37 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Definition of "heir"

We have this debate all the time in our office so I'm curious to see what other's say.  To me I can see both sides of that pancake but tend to lean towards notice assuming someone would claim an asset was separate property.  At the end of the day I think you could ask questions enough to be comfortable with accepting the assertion as to classification of property, and I have in long-term, first-term marriages.  In shorter or more recent marriages I will lean towards notices.

Penny for everyone else's thoughts - this will be good.

Diane J. Kiepe

Diane J. Kiepe
Douglas Eden
717 W. Sprague Ave.
Suite 1500
Spokane, WA  99201
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>
509-455-5300

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 Jon Fritzler
Sent: Monday, June 20, 2022 3:27 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Definition of "heir"

RCW 11.02.005 provides that: "Heirs" denotes those persons, including the surviving spouse or surviving domestic partner, who are entitled under the statutes of intestate succession to the real and personal property of a decedent on the decedent's death intestate.

Decedent died intestate and was survived by a spouse and one sibling. Decedent never had any children. Per RCW 11.04.015(2)(c), the decedent's sibling is entitled to one-quarter of the decedent's separate property per RCW 11.04.015(2)(c). According to the surviving spouse, however, the decedent's estate is composed of community property only. The surviving spouse is entitled to all of the decedent's share of the community property. RCW 11.04.015(1).

Even though it appears that the decedent's sibling is not entitled to any property from the estate, would you nonetheless list the sibling as an heir in the petition to appoint the surviving spouse as personal representative and send them a Notice of Appointment?  If you don't list the sibling and give them notice, aren't you risking that they could pop up later to say, "Actually, the decedent did have some separate property and I should have received 25% of it."

Sincerely,
Jon M. Fritzler
Attorney at Law
717 E. 22nd St.
Vancouver, WA 98663
Tel. 360.818.4431
Eml fritzlerlaw at outlook.com<mailto:fritzlerlaw at outlook.com>

CONFIDENTIALITY
The information contained in this email is intended only for the use of the person or entity to whom it is addressed. This email may contain confidential or privileged information. If you are not the person whose name appears above, or the person responsible for delivering the email to the addressee, you are hereby notified that reading, using, copying, distributing or disseminating this communication is strictly prohibited. If you think that you have received this email message in error, please email the sender at fritzlerlaw at outlook.com<mailto:fritzlerlaw at outlook.com>. Thank you.

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