[WSBAPT] Question about claims and/or liabilities against the estate from an active or on-going lawsuit

[Jennifer L White]

There is lots to unpack in your fact scenario and you will need to think through the tactics of various strategies. It may not be best to simply run to court to open the estate. Can you hang back and not file a probate? Why give them a ready made forum to file a claim if you don't need to? See if you can wait them out 24 mo after death to limit their reach to the amount of insurance. Without an open estate, that may give you some leverage for ins defense counsel to get a settlement within policy limits. Of course, that is banking on the lawsuit plaintiff not filing the probate themselves.

And, if you do file a probate, if you have the right beneficiaries, you can file for a family support award under RCW 11.54 to protect some assets from a claim in excess of the policy limits.


Jennifer L. White, Esq.
[cid:image001.jpg at 01D9D1C4.5C76B920]

jen at appletreelaw.com<mailto:jen at appletreelaw.com>
2200 S 76th Ave
Yakima, WA 98903
509.225.9813

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Roger Hawkes
Sent: Friday, August 18, 2023 10:42 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Question about claims and/or liabilities against the estate from an active or on-going lawsuit

Don't do anything that would eliminate the necessity for claimant to make a creditors' claim

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 msafren at jennylinglaw.com<mailto:msafren at jennylinglaw.com>
Sent: Friday, August 18, 2023 10:04 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Question about claims and/or liabilities against the estate from an active or on-going lawsuit

Hello Fellow Practitioners,

I have some questions about the effect of an on-going lawsuit against the decedent with respect to claims, liabilities, and solvency of the decedent's estate.

Summary of Facts:
Decedent was involved in a personal injury case and person who claimed sued decedent prior to decedent's death.  The case is active and on-going and as such, total liability is undetermined yet and as well as issues of fault and possible defenses.  At this time is anticipated that a successful claim by the plaintiff would likely exceed the liability insurance coverage- leaving potential liability for any judgment or settlement to the estate.

Giving the uncertainty of the outcome of the lawsuit, when petitioning the court to open probate, need this case and potential liability resulting from the case,  be disclosed as part of the petition?  If so, would it affect the determination of solvency at this time, given that there has been no resolution or determination in the personal injury case?

The only information I was able to find in my searches are RCW 11.40.060, which only appears to speak to the time limits for claims involving liability or casualty insurance-Limitations-Exceptions to time limits, and RCW 11.76.190 addressing the procedure on contingent and disputed claim at the closing or settlement of the estate, but these were unhelpful at this time.

Any guidance or information on these questions and concerns would be greatly appreciated!  Thank you in advance.

Kind regards,

Michael S. Safren, Esq.
Attorney at Law

14900 Interurban Ave. S., Ste. 280 | Seattle, WA 98168
11900 NE 1st St., Bldg. G - Ste. 300 |  Bellevue, WA 98005
P: (206) 859-5098 | E: msafren at jennylinglaw.com<mailto:msafren at jennylinglaw.com>
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