[WSBAPT] Division One Case re: Duty to Initiate Probate

[Eric Nelsen]

I agree with you, not the court. The court misspoke. The statutory duty is to file the will. There is no duty to initiate a probate. Lots of decedents with wills pass with no need for a probate. Lots of people have RLTs to avoid a probate and execute a pour-over will only to catch assets inadvertently left out of the trust. People die testate but without assets, with assets but all of them are non-probate, etc.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Sullivan, Brett
Sent: Tuesday, June 21, 2022 3:05 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Division One Case re: Duty to Initiate Probate

Hello listserv-

I read In re the Estate of Lillian Mae Tymony today (an unpublished Division One case announced today) and was troubled by a position that the court seemed to take as described on page 17. The court stated that "[i]n its oral ruling, the [trial court] referenced RCW 11.20.010, which creates a duty for the executor of a will to initiate probate within 40 days of notice of the death of the testator and establishes liability to parties aggrieved by any willful disregard of that duty." (Emphasis added).

I don't read RCW 11.20.010 that way; rather, I read it as creating a duty on the custodian of a will to file it with the court within 40 days (if the custodian is the "executor," then the executor has to file it). However, some wills don't need to be probated. The clerks of the Superior Court (at least in Spokane County) anticipate this fact by allowing for a "will only" filing. I'm generally confused as to where this "duty to initiate probate" arises.

Does anyone else read this statute differently than how I read it?

Thank you.

PS: Here's a link to this opinion:  https://www.courts.wa.gov/opinions/pdf/829092.pdf

Brett T. Sullivan
Attorney at Law
Partner

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