[WSBAPT] Who is Entitled to Notice of Appointment

[Diane J. Kiepe]

This has been a debate in our office with myself leaning towards notice for reasons stated so well below.

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 <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Joshua McKarcher
Sent: Tuesday, October 11, 2022 5:46 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Who is Entitled to Notice of Appointment

As I have blathered on about before, I absolutely believe the spouse or applicant must give notice to those who would take under intestacy AS IF the decedent owned both community and separate property at the time of death. (And that is not just children, remember, but descendants of predeceased, etc. A lawyer with 40 years’ experience doing probates once was skeptical when I informed them that a decedent’s minor grandson was an heir of the intestate decedent and takes the share of the decedent’s predeceased daughter. It was awkward. An experienced lawyer would have disinherited the grandson had it never come up.)

I think if a non-lawyer acting pro se in good faith does not give notice, the proper analysis is simple: fine, but the non-noticed parties are not bound by the proceeding. They are presumably bound by the two-year SOL (if not minors?), but I’ve never run the analysis to a point I’d swear by it.

But, for my part, any lawyer involved simply must counsel the client to FIRST RUN THE FAMILY TREE ALL THE WAY DOWN to a surviving descendant or an empty branch, collect addresses, and then give notice.

Otherwise, the lawyer is making a legal determination -- that all property is community -- that is premature and not theirs to make. One can ALLEGE that all community is property in a verified petition/application, no problem -- and then give notice to those who would take if the allegation was incorrect (i.e., if there was separate property).

And when they don’t timely challenge the allegation, fine, then that’s that. But until it’s alleged, filed, and noticed up, it cannot just “be” by one thinking it, such as a former president apparently believes about declassifying documents. (har har) We have due process for good reasons, and probate procedure already skates right along the edges of traditional due process understandings and norms (postal notice vs. service of process, etc.).

The language of RCW 11.28.237 should be revised to be much clearer – it should be understandable to pro se parties. Something like: “to those persons who would be the decedent’s heirs under RCW 11.02.005(9) if the deceased died intestate owning both community and separate property on the date of death.” Maybe I’ll write to my local state senator after sending this. 😉

Adios!

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 Lovie Bernardi
Sent: Tuesday, October 11, 2022 3:04 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Who is Entitled to Notice of Appointment

Dear listserv members,

It has always been my practice to send notice to the children of a decedent when opening a probate, even when it appears all decedent’s property is community property and goes to the surviving spouse. I have been contacted by the child of a decedent who did not receive a notice of appointment when her father’s probate was filed. The probate has been closed for three years and she and the other children just found out about the probate. I viewed the petition (filed by step mother) online and the children were not listed as heirs and the petition states all property was community property. Setting aside the issue that there is nothing for the heirs to claim if all property was community, were the heirs entitled to notice? I’ve looked at the statute and the definition of heirs is as follows :
"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.
I suppose it could be argued that if there is no separate property, the heirs other than the surviving spouse aren’t entitled to any property and therefore aren’t entitled to notice. But I would argue that they should be given notice so they can demand an inventory of the assets so they can dispute the characterization of the assets as community property, if appropriate.
I would like to know how others view this issue. Thanks!

Lovie

Lovie L. Bernardi
Flaherty & Bernardi, PLLC
3600 15th Avenue West #205
Seattle, WA  98119
(206) 682-2616

lovie at fb-lawfirm.com<mailto:joni at sbfirm.com>
http://fb-lawfirm.com<http://sbfirm.com/>

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