[WSBAPT] Confirmation of (No) Duty to Respond

Tue Jun 21 20:38:28 PDT 2022

Another very thoughtful post, Phil. Although Brent has no duty to advise the caller, I nonetheless commend to my fellow estate administration lawyers' consideration RCW 11.40.070(4) (https://app.leg.wa.gov/RCW/default.aspx?cite=11.40.070), pasted below in italics. I have always understood it to implement Washington's policy choice in favor of paying valid claims without a bunch of rigmarole or threat of lawsuits and ethical charges where they aren't deserved. (Consider also that many wills expressly request that their PR pay final expenses - don't overlook that separate instruction that may apply to your client.)

. . . (4) Notwithstanding any other provision of this chapter, if a claimant makes a written demand for payment within the time limits set forth in RCW 11.40.051, the personal representative may waive formal defects and elect to treat the demand as a claim properly filed under this chapter if: (a) The claim was due; (b) the amount paid is the amount of indebtedness over and above all payments and offsets; (c) the estate is solvent; and (d) the payment is made in good faith. Nothing in this chapter limits application of the doctrines of waiver, estoppel, or detrimental claims or any other equitable principle.

Although I still believe that fiduciary duties run formally to beneficiaries in a solvent estate, I see no good reason not to pay valid and "reasonably if not formally asserted" claims during the administration of the "usual, patently-solvent estate," particularly if the claims are of the nature of final medical or nursing care expenses.

RCW 11.40.070(4) permits payment of the usual, uncontroversial invoice sent in (what one might call) the "ordinary course of business" by a claimant and received by a PR, trustee, or his/her attorney in the months after death, without any formal filing of a claim.

I view the claim statutes as critical to achieving finality for our clients and their beneficiaries. I sent a LOT of notices to my clients' "known or reasonably ascertainable" creditors. However, that does mean the statutes construct a trap for the unwary service provider. Respectfully, that does not serve any of public policy, PRs, or lawyers advising them.

Best regards, 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 <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Philip N. Jones
Sent: Tuesday, June 21, 2022 4:14 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Confirmation of (No) Duty to Respond

This question is often debated down here in Oregon.  There is very little authority on point in Oregon.  I will offer a paragraph I wrote for a CLE presentation, not because I think Oregon law is controlling, but because it might get a Washington attorney thinking about some of the nuances.  I hope someone can offer us some Washington authority.  Note that this paragraph deals with the duty of the fiduciary, not the fiduciary's attorney.

Although ORS 130.655 states that trusts are to be administered solely in the interests of the beneficiaries, a trustee nevertheless has a duty to pay valid creditors, similar to the duty of a personal representative.  See ORS 114.395, where the probate code states that a personal representative has duties to interested persons "to the same extent as the trustee of an express trust."  Under the probate code, interested persons include creditors, according to ORS 111.005(19).  ORS 130.425 provides a list of priorities in payments of creditors by trustees.  There is very little other authority in Oregon on the subject of the duties of a trustee to the creditors of the settlor or to the creditors of the trust, but the consensus seems to be that a fiduciary has a duty to pay claims that are validly and procedurally presented to the fiduciary, but does not have a duty to assist creditors in the filing of claims.  If nothing else, a fiduciary has a right to protect the fiduciary from creditors who might claim that they were not properly paid, and the fiduciary also has a duty to the beneficiaries to convey assets to the beneficiaries free of claims by creditors of the trust or estate.

As for the duty of the attorney for the personal representative, the duty is to help keep the PR out of trouble.  I don't believe that the attorney has a fiduciary duty to the creditors (or the beneficiaries), but the attorney does have a duty to help the PR fulfil his or her fiduciary duties to those people.  It is a fine line.

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: Tuesday, June 21, 2022 2:53 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Confirmation of (No) Duty to Respond

Brent,

I heard one person state that not only should you not provide direction but to do so would be a conflict of interest to your client (PR) as well as a possible violation of other rules of ethics because the listener may assume  your are now also their attorney.  In our letter we just provide the notice of probate (which in it states the 30 day period) and in a cover letter provide that they may wish to consult counsel.

Now, I will not say I have never helped someone (I honestly don't recall......) but it is my current practice to provide just what the statute says for the above reasons.

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 Brent Williams-Ruth
Sent: Tuesday, June 21, 2022 2:02 PM
To: WSBA Probate & Trust Listserv <WSBAPT at lists.wsbarppt.com<mailto:WSBAPT at lists.wsbarppt.com>>
Subject: [WSBAPT] Confirmation of (No) Duty to Respond

Greetings List Member -

I have an assisted living facility who has been harassing one of my Executors for payment. We advised them at the start of probate that notice would be provided in accordance with the law (they kept calling and writing). Now we have sent the notice to them as a known creditor and they call and are asking our office for instruction on how to file a claim.

I just want to make sure that I have zero duty to respond or assist them when I have provided the appropriate documentation that lists the instructions as per the statute.

Thank you!

Brent Williams-Ruth (pronouns: he/him)
Attorney-At-Law

Law Offices of Brent Williams-Ruth, a division of BWR Consulting, PLLC

Physical Address: 500 S 336th Street, Suite 214; Federal Way, WA 98003

**EFFECTIVE IMMEDIATELY** All mail sent through the USPS should be sent to the following address: PO BOX 3319; Federal Way, WA 98063

Office/Scheduling Phone: (253) 285-7751

Direct: (253) 285-7453

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