[WSBAPT] WSBAPT Digest, Vol 107, Issue 22
Emily Wilson
Emily at Spokanewtp.com
Wed Aug 23 13:13:08 PDT 2023
Hello Listmates,
I'm looking for a reputable attorney in Phoenix who to advise 88 year old with modifications to a Trust. I'd appreciate any contacts you can share.
Thanks,
Emily Wilson І Attorney/Owner
Spokane Wills, Trusts, and Probate
Email: Emily at SpokaneWTP.com
Phone: 509-324-2431
http://www.SpokaneWTP.com
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of wsbapt-request at lists.wsbarppt.com
Sent: Thursday, August 17, 2023 4:25 PM
To: wsbapt at lists.wsbarppt.com
Subject: WSBAPT Digest, Vol 107, Issue 22
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Today's Topics:
1. Re: Probate discovery v. TEDRA discovery (Bruce Moen)
2. Re: Eminent Adult Protective Services Visit (Paul Neumiller)
3. Re: Eminent Adult Protective Services Visit (Philip N. Jones)
4. Contingent beneficiary in TOD deed? (susan at pepetersonlaw.com)
5. Death of probate beneficiary in a TEDRA case (Candace Wilkerson)
6. Re: Contingent beneficiary in TOD deed? (Candace Wilkerson)
7. Re: Death of probate beneficiary in a TEDRA case (Roger Hawkes)
8. Re: Eminent Adult Protective Services Visit (Roger Hawkes)
9. Re: Probate discovery v. TEDRA discovery (Roger Hawkes)
10. Re: Eminent Adult Protective Services Visit (Paul Neumiller)
11. Re: Eminent Adult Protective Services Visit (Jennifer L White)
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Message: 1
Date: Thu, 17 Aug 2023 19:24:17 +0000
From: Bruce Moen <brm at moenlaw.com>
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Probate discovery v. TEDRA discovery
Message-ID:
<MW4PR04MB7283CA3F000DBF39722BAED0BB1AA at MW4PR04MB7283.namprd04.prod.outlook.com>
Content-Type: text/plain; charset="windows-1252"
Eric,
So how to get the court to rule that the Civil Rules do not apply?
I have argued CR 1 and Grasser v. Blakkolb many times over the years in the core probate administration (not a related TEDRA).
Most recently on whether a party was entitled to a Protective Order on certain materials provided to the PR.
And, of course, more complications then arise and you spend the next six months arguing about how the CRs apply when the CR should never have been an issue. Exasperation!
My argument is almost always rejected on the basis of "Well, that may be true Mr. Moen but I'm going to apply the CR anyhow because everyone knows the CRs and it will provide guidance as we move along." I even had a Constitutional Commissioner (who should know better) reply "I wouldn't
know how to proceed without the CR."
Is your experience different? How do you turn them around?
Bruce Moen
________________________________
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> on behalf of Eric Nelsen <eric at sayrelawoffices.com>
Sent: Thursday, August 17, 2023 11:59 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Probate discovery v. TEDRA discovery
I think RCW 11.96A.115(2)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.115> controls and no discovery is permitted in an ordinary probate administration, without first getting leave of court. On the occasions when I?ve wanted to issue subpoenas to recalcitrant banks et al., I submit an Ex Parte motion to get authority first. I don?t think anyone is entitled to notice of the motion so I generally have my Order the same day.
The alternative method I have used is under the general authority of RCW 11.48.020<https://app.leg.wa.gov/RCW/default.aspx?cite=11.48.020>, the PR?s right to possession and control of all property of the decedent. That ?property? includes the decedent?s contractual rights with the bank, which includes decedent?s contractual right to receive information concerning the account, periodic statements, etc. So, instead of subpoena power, I have sometimes submitted an Ex Parte motion for an order commanding a specific bank to turn over particular documents and information by a deadline. Basically like a subpoena, but it?s a direct order by the court instead.
More generally: After many years of going back and forth I now think that none of the Civil Rules apply to a probate administration in any respect, unless they are specifically invoked or incorporated by a probate statute. Though I do use them as a template for taking certain actions in probate?for example, I follow CR 70.1 and CR 71 when appearing or withdrawing for a party to a probate administration. Even if it?s not technically applicable, it?s sure to be applied by analogy by any judge analyzing whether or not I have properly appeared or withdrawn from representing a client.
CR 1 and CR 81 make the Civil Rules apply to ?civil proceedings.? I?ve never seen a definition of that, but I now think that it means only litigation matters. Probate administration is solely an administrative matter under the court?s equitable jurisdiction, and is not a ?civil proceeding? except in the more general sense that it is a non-criminal proceeding.
The WSBA Civil Procedure Deskbook (3d ed. 2014), Ch. 1.6, states:
Although CR 1 applies by its terms to only civil actions, courts have suggested that the civil rules might be instructive in other contexts. In In re Estate of Toth, 138 Wn.2d 650, 655-67, 981 P.2d 439 (1999), for example, the court discussed, without deciding, the possibility that CR 6(e) could apply to probate filing periods. But see Grasser v. Blakkolb, 12 Wn.App. 529, 530 P.2d 684 (1975), review denied, 85 Wn.2d 1005 (1975) (holding that the rejection of a claim in a probate matter is not a civil suit for purpose of CR 1, which restricts the application of Superior Court Civil Rules to suits of a civil nature). Ultimately, the Toth court decided that even if the civil rules did apply to probate actions, rule 6(e) would not apply by its terms to the issue on appeal. Estate of Toth, 138 Wn.2d at 651.
Sincerely,
Eric
Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Dalynne Singleton
Sent: Thursday, August 17, 2023 11:06 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Probate discovery v. TEDRA discovery
I have reviewed RCW 11 and 11.96A and I know and have done discovery in TEDRA as discovery is allowed which encompasses subpoena powers, issuing subpoena duces tecum, deposition, interrogatories, etc.
BUT, in a probate cause ? what discovery is allowed?
In probate (not TEDRA), I have had occasion to issue a SDT to a bank and send to all counsel/heirs to object under CR 45. If no objection, then I issue the SDT and get bank records, usually to discover if JWROS, TOD accounts, access to bank records of decedent, etc. I remember awhile back, someone posted authority that they believed there is no discovery allowed in probate w/o court order but can?t find that old post.
Anyone have an opinion on this issue and how you approach needing records in a probate cause?
Dalynne Singleton
Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street / PO Box 1091
Snohomish, WA 98291
360.568.5065
360.568.8092 fax
dalynne at glgmail.com<mailto:dalynne at glgmail.com>
Website: www.glglawgroup.com<http://www.glglawgroup.com/>
Attorney/client meetings will be handled by teleconference or virtually whenever possible. If you would like to set a telephone conference, zoom, or in person meeting, please call or email one my paralegals selina at glgmail.com<mailto:selina at glgmail.com> or elle at glgmail.com<mailto:elle at glgmail.com>. My legal assistant can be reached at paige at glgmail.com<mailto:paige at glgmail.com>. Co-counsel Anna Thompson can be reached at anna at glgmail.com<mailto:anna at glgmail.com>.
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Message: 2
Date: Thu, 17 Aug 2023 21:06:45 +0000
From: Paul Neumiller <pneumiller at hotmail.com>
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Eminent Adult Protective Services Visit
Message-ID:
<MW3PR13MB39806F4BF710DDA849347F48D21AA at MW3PR13MB3980.namprd13.prod.outlook.com>
Content-Type: text/plain; charset="us-ascii"
Thanks to all who respond, on and off-line.
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Philip N. Jones
Sent: Thursday, August 17, 2023 10:53 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Eminent Adult Protective Services Visit
That's a tough question.
If you are not in the room, your client might say something odd.
If you are in the room, APS might think you are a Svengali working on behalf of the evil wife.
Perhaps you should talk to the APS person first and get a sense of how professional/reasonable the APS person is. If they seem OK, stay out.
Very hard to say.
Do you also represent the wife? I hope not.
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 Paul Neumiller
Sent: Thursday, August 17, 2023 10:37 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Eminent Adult Protective Services Visit
Listmates: Waaaay out of my wheel house. Recently remarried elderly client meets with me to change his estate planning. He wants to provide for his new wife (not everything, just a portion of his estate). Adult children from a previous marriage (and trust babies) from CA have called the local Adult Protective Services and APS want to talk to my client (APS left a business card on my client's front door last night). Trust babies have an attorney in CA who argues to me that some documents are forged and that my client is senile and that the new wife is taking advantage of my client. I personally feel the client is competent. My initial reaction is for the client to meet with APS and answer whatever questions APS has. APS will probably want to interview my client without the new spouse in the room. Should I be in the room?
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Message: 3
Date: Thu, 17 Aug 2023 21:22:48 +0000
From: "Philip N. Jones" <pjones at duffykekel.com>
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Eminent Adult Protective Services Visit
Message-ID:
<CH3PR02MB101538DBC91838DBDA8E69B25BC1AA at CH3PR02MB10153.namprd02.prod.outlook.com>
Content-Type: text/plain; charset="us-ascii"
More than ten years ago, Jim Cartwright and I wrote an article on how to take steps during the planning process to avoid will contests after the client dies. The article was written under Oregon law, but I believe it is still valid and much of it would apply to the situation described in this string. Here is the link to that article:
Est_2011Oct.pdf (osbar.org)<https://estateplanning.osbar.org/files/2015/05/Est_2011Oct.pdf>
If the link doesn't work, just run a search on the Oregon State Bar Estate Planning and Administration Section Newsletter, October 2011 issue. I don't think you need to be a member of the OSB to access it.
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 <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Paul Neumiller
Sent: Thursday, August 17, 2023 2:07 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Eminent Adult Protective Services Visit
Thanks to all who respond, on and off-line.
[cid:image001.jpg at 01D9D115.E5FAAF30]
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: Thursday, August 17, 2023 10:53 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Eminent Adult Protective Services Visit
That's a tough question.
If you are not in the room, your client might say something odd.
If you are in the room, APS might think you are a Svengali working on behalf of the evil wife.
Perhaps you should talk to the APS person first and get a sense of how professional/reasonable the APS person is. If they seem OK, stay out.
Very hard to say.
Do you also represent the wife? I hope not.
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 Paul Neumiller
Sent: Thursday, August 17, 2023 10:37 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Eminent Adult Protective Services Visit
Listmates: Waaaay out of my wheel house. Recently remarried elderly client meets with me to change his estate planning. He wants to provide for his new wife (not everything, just a portion of his estate). Adult children from a previous marriage (and trust babies) from CA have called the local Adult Protective Services and APS want to talk to my client (APS left a business card on my client's front door last night). Trust babies have an attorney in CA who argues to me that some documents are forged and that my client is senile and that the new wife is taking advantage of my client. I personally feel the client is competent. My initial reaction is for the client to meet with APS and answer whatever questions APS has. APS will probably want to interview my client without the new spouse in the room. Should I be in the room?
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Message: 4
Date: Thu, 17 Aug 2023 14:43:37 -0700
From: <susan at pepetersonlaw.com>
To: <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Contingent beneficiary in TOD deed?
Message-ID: <050b01d9d153$e2211550$a6633ff0$@pepetersonlaw.com>
Content-Type: text/plain; charset="us-ascii"
Hello listmates,
Client owns 50% of the home she shares with her daughter, daughter and her
husband own the other 50%. She would like to use a TOD deed to transfer her
interest in the home to her daughter on her death, BUT she would also like
to specify in the deed that, should her daughter predecease her, the
property goes to daughter's husband. I know that the statute specifies that
the gift to a named beneficiary who does not survive the transferor lapses,
and will vest in another concurrent beneficiary, but I don't seen anything
one way or the other about a contingent beneficiary. Has anyone done this?
Does anyone see a problem with it?
Susan E. Spuller
Attorney at Law
Peterson Spuller, PLLC
345 Knechtel Way NE, Suite 102
Bainbridge Island, WA 98110
206.855.9293
Fax: 206.678.0105
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Message: 5
Date: Thu, 17 Aug 2023 22:27:27 +0000
From: Candace Wilkerson <cwilkerson at wongfleming.com>
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Death of probate beneficiary in a TEDRA case
Message-ID: <12a5f050696d40f2929c8b3e04341826 at wongfleming.com>
Content-Type: text/plain; charset="us-ascii"
Hi Listmates,
I am representing a Personal Representative client defending against a will contest. We currently have a trial set for mid-November in the will contest case.
I just discovered that one of the estate beneficiaries (not involved in the will contest) has allegedly died, but I haven't confirmed this yet. The possibly deceased beneficiary would inherit whether the will contest succeeds or not, but the inheritance amount will be different according to the result of the will contest. This beneficiary never filed a request for special notice in either the probate or TEDRA case.
I assume our will contest case cannot continue as set at this point. Has anyone dealt with such a situation before?
Thanks,
Candace Wilkerson
*Candace is available to respond to emails and phone calls between the hours of 7:00 a.m. and 3:00 p.m. If you have an urgent matter outside that time period, please call our office at the number below.
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Top Ranked Law Firm for 2015 by Fortune Magazine and American Lawyer Media
Candace Wilkerson | Senior Associate | Wong Fleming
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Message: 6
Date: Thu, 17 Aug 2023 22:31:46 +0000
From: Candace Wilkerson <cwilkerson at wongfleming.com>
To: "wsbapt at lists.wsbarppt.com" <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Contingent beneficiary in TOD deed?
Message-ID: <630266e8b7cd406c8af5366ce4c9c002 at wongfleming.com>
Content-Type: text/plain; charset="us-ascii"
I have seen a contingent beneficiary on a TODD before, and the county in which it was recorded had no problems transferring to the contingent beneficiary after the primary beneficiary died.
Best,
Candace Wilkerson
*Candace is available to respond to emails and phone calls between the hours of 7:00 a.m. and 3:00 p.m. If you have an urgent matter outside that time period, please call our office at the number below.
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Top Ranked Law Firm for 2015 by Fortune Magazine and American Lawyer Media
Candace Wilkerson | Senior Associate | Wong Fleming
9840 Willows Road NE, Suite 200 | Redmond, WA 98052
Phone: 425.869.4040 | Fax: 425.869.4050
cwilkerson at wongfleming.com<mailto:cwilkerson at wongfleming.com>
Please leave us a review on Google by clicking here<https://www.google.com/search?q=google+wong+fleming&rlz=1C1SQJL_enUS925US925&oq=google+wong+fleming&aqs=chrome..69i57j69i64.2183j1j4&sourceid=chrome&ie=UTF-8>.
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IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (a) avoiding penalties under the Internal Revenue Code or (b) promoting, marketing or recommending to another party any transaction or matter addressed herein.
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of susan at pepetersonlaw.com
Sent: Thursday, August 17, 2023 5:44 PM
To: wsbapt at lists.wsbarppt.com
Subject: [WSBAPT] Contingent beneficiary in TOD deed?
Hello listmates,
Client owns 50% of the home she shares with her daughter, daughter and her husband own the other 50%. She would like to use a TOD deed to transfer her interest in the home to her daughter on her death, BUT she would also like to specify in the deed that, should her daughter predecease her, the property goes to daughter's husband. I know that the statute specifies that the gift to a named beneficiary who does not survive the transferor lapses, and will vest in another concurrent beneficiary, but I don't seen anything one way or the other about a contingent beneficiary. Has anyone done this? Does anyone see a problem with it?
Susan E. Spuller
Attorney at Law
Peterson Spuller, PLLC
345 Knechtel Way NE, Suite 102
Bainbridge Island, WA 98110
206.855.9293
Fax: 206.678.0105
The information contained in this email is confidential and may also be attorney-client privileged. The information is intended only for the use of the individual or entity to whom it is addressed. If you are not the intended recipient, or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this email in error, please immediately notify me by replying to this email and delete the original. Thank you.
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Message: 7
Date: Thu, 17 Aug 2023 23:04:58 +0000
From: Roger Hawkes <roger at skyvalleylawyers.com>
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Death of probate beneficiary in a TEDRA case
Message-ID:
<CO6PR20MB366816DAEB3E78AF87E1A725D51AA at CO6PR20MB3668.namprd20.prod.outlook.com>
Content-Type: text/plain; charset="us-ascii"
Give new bf notice of all and see what happens.
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Candace Wilkerson
Sent: Thursday, August 17, 2023 3:27 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Death of probate beneficiary in a TEDRA case
Hi Listmates,
I am representing a Personal Representative client defending against a will contest. We currently have a trial set for mid-November in the will contest case.
I just discovered that one of the estate beneficiaries (not involved in the will contest) has allegedly died, but I haven't confirmed this yet. The possibly deceased beneficiary would inherit whether the will contest succeeds or not, but the inheritance amount will be different according to the result of the will contest. This beneficiary never filed a request for special notice in either the probate or TEDRA case.
I assume our will contest case cannot continue as set at this point. Has anyone dealt with such a situation before?
Thanks,
Candace Wilkerson
*Candace is available to respond to emails and phone calls between the hours of 7:00 a.m. and 3:00 p.m. If you have an urgent matter outside that time period, please call our office at the number below.
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Top Ranked Law Firm for 2015 by Fortune Magazine and American Lawyer Media
Candace Wilkerson | Senior Associate | Wong Fleming
9840 Willows Road NE, Suite 200 | Redmond, WA 98052
Phone: 425.869.4040 | Fax: 425.869.4050
cwilkerson at wongfleming.com<mailto:cwilkerson at wongfleming.com>
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Before proceeding, please note: If you are not a current client of Wong Fleming, please do not include any information in this e-mail that you or someone else considers to be of a confidential or secret nature. Wong Fleming has no duty to keep confidential any of the information you provide. Neither the transmission nor receipt of your information is considered a request for legal advice, securing legal services or retaining a lawyer. An attorney-client relationship with Wong Fleming or any lawyer at Wong Fleming is not established until and unless Wong Fleming agrees to such a relationship as reflected in a separate writing.
IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (a) avoiding penalties under the Internal Revenue Code or (b) promoting, marketing or recommending to another party any transaction or matter addressed herein.
THIS ELECTRONIC MAIL TRANSMISSION AND ANY ATTACHMENTS MAY CONTAIN PRIVILEGED, CONFIDENTIAL, OR PROPRIETARY INFORMATION INTENDED ONLY FOR THE PERSON(S) NAMED. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR THE AUTHORIZED REPRESENTATIVE OF THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISTRIBUTION, COPYING, OR DISCLOSURE OF THIS COMMUNICATION IS STRICTLY PROHIBITED
This communication is from a debt collector.
This is an attempt to collect a debt and any information obtained will be used for that purpose.
CONSUMER OPT-OUT: Please note that you may opt out of receiving further email communications to this email address by replying to this email with the word "stop" in the subject line. While the firm will comply with your request to opt out of receiving further electronic communication to this email address, please be advised that the firm may still be required by applicable law or court rule to provide you with certain notices or pleadings.
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------------------------------
Message: 8
Date: Thu, 17 Aug 2023 23:08:23 +0000
From: Roger Hawkes <roger at skyvalleylawyers.com>
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Eminent Adult Protective Services Visit
Message-ID:
<CO6PR20MB3668BE73C00DC3F254EEB783D51AA at CO6PR20MB3668.namprd20.prod.outlook.com>
Content-Type: text/plain; charset="us-ascii"
Video the meeting, too?
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Philip N. Jones
Sent: Thursday, August 17, 2023 2:23 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Eminent Adult Protective Services Visit
More than ten years ago, Jim Cartwright and I wrote an article on how to take steps during the planning process to avoid will contests after the client dies. The article was written under Oregon law, but I believe it is still valid and much of it would apply to the situation described in this string. Here is the link to that article:
Est_2011Oct.pdf (osbar.org)<https://estateplanning.osbar.org/files/2015/05/Est_2011Oct.pdf>
If the link doesn't work, just run a search on the Oregon State Bar Estate Planning and Administration Section Newsletter, October 2011 issue. I don't think you need to be a member of the OSB to access it.
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 Paul Neumiller
Sent: Thursday, August 17, 2023 2:07 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Eminent Adult Protective Services Visit
Thanks to all who respond, on and off-line.
[cid:image001.jpg at 01D9D125.0AD44960]
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: Thursday, August 17, 2023 10:53 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Eminent Adult Protective Services Visit
That's a tough question.
If you are not in the room, your client might say something odd.
If you are in the room, APS might think you are a Svengali working on behalf of the evil wife.
Perhaps you should talk to the APS person first and get a sense of how professional/reasonable the APS person is. If they seem OK, stay out.
Very hard to say.
Do you also represent the wife? I hope not.
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 Paul Neumiller
Sent: Thursday, August 17, 2023 10:37 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Eminent Adult Protective Services Visit
Listmates: Waaaay out of my wheel house. Recently remarried elderly client meets with me to change his estate planning. He wants to provide for his new wife (not everything, just a portion of his estate). Adult children from a previous marriage (and trust babies) from CA have called the local Adult Protective Services and APS want to talk to my client (APS left a business card on my client's front door last night). Trust babies have an attorney in CA who argues to me that some documents are forged and that my client is senile and that the new wife is taking advantage of my client. I personally feel the client is competent. My initial reaction is for the client to meet with APS and answer whatever questions APS has. APS will probably want to interview my client without the new spouse in the room. Should I be in the room?
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Message: 9
Date: Thu, 17 Aug 2023 23:12:13 +0000
From: Roger Hawkes <roger at skyvalleylawyers.com>
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Probate discovery v. TEDRA discovery
Message-ID:
<CO6PR20MB3668B0EEBA3764CE55FE8343D51AA at CO6PR20MB3668.namprd20.prod.outlook.com>
Content-Type: text/plain; charset="us-ascii"
My gut says most judges would apply the civil rules since there does not appear to be a separate probate section.
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Eric Nelsen
Sent: Thursday, August 17, 2023 11:59 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Probate discovery v. TEDRA discovery
I think RCW 11.96A.115(2)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.115> controls and no discovery is permitted in an ordinary probate administration, without first getting leave of court. On the occasions when I've wanted to issue subpoenas to recalcitrant banks et al., I submit an Ex Parte motion to get authority first. I don't think anyone is entitled to notice of the motion so I generally have my Order the same day.
The alternative method I have used is under the general authority of RCW 11.48.020<https://app.leg.wa.gov/RCW/default.aspx?cite=11.48.020>, the PR's right to possession and control of all property of the decedent. That "property" includes the decedent's contractual rights with the bank, which includes decedent's contractual right to receive information concerning the account, periodic statements, etc. So, instead of subpoena power, I have sometimes submitted an Ex Parte motion for an order commanding a specific bank to turn over particular documents and information by a deadline. Basically like a subpoena, but it's a direct order by the court instead.
More generally: After many years of going back and forth I now think that none of the Civil Rules apply to a probate administration in any respect, unless they are specifically invoked or incorporated by a probate statute. Though I do use them as a template for taking certain actions in probate-for example, I follow CR 70.1 and CR 71 when appearing or withdrawing for a party to a probate administration. Even if it's not technically applicable, it's sure to be applied by analogy by any judge analyzing whether or not I have properly appeared or withdrawn from representing a client.
CR 1 and CR 81 make the Civil Rules apply to "civil proceedings." I've never seen a definition of that, but I now think that it means only litigation matters. Probate administration is solely an administrative matter under the court's equitable jurisdiction, and is not a "civil proceeding" except in the more general sense that it is a non-criminal proceeding.
The WSBA Civil Procedure Deskbook (3d ed. 2014), Ch. 1.6, states:
Although CR 1 applies by its terms to only civil actions, courts have suggested that the civil rules might be instructive in other contexts. In In re Estate of Toth, 138 Wn.2d 650, 655-67, 981 P.2d 439 (1999), for example, the court discussed, without deciding, the possibility that CR 6(e) could apply to probate filing periods. But see Grasser v. Blakkolb, 12 Wn.App. 529, 530 P.2d 684 (1975), review denied, 85 Wn.2d 1005 (1975) (holding that the rejection of a claim in a probate matter is not a civil suit for purpose of CR 1, which restricts the application of Superior Court Civil Rules to suits of a civil nature). Ultimately, the Toth court decided that even if the civil rules did apply to probate actions, rule 6(e) would not apply by its terms to the issue on appeal. Estate of Toth, 138 Wn.2d at 651.
Sincerely,
Eric
Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.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 Dalynne Singleton
Sent: Thursday, August 17, 2023 11:06 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Probate discovery v. TEDRA discovery
I have reviewed RCW 11 and 11.96A and I know and have done discovery in TEDRA as discovery is allowed which encompasses subpoena powers, issuing subpoena duces tecum, deposition, interrogatories, etc.
BUT, in a probate cause - what discovery is allowed?
In probate (not TEDRA), I have had occasion to issue a SDT to a bank and send to all counsel/heirs to object under CR 45. If no objection, then I issue the SDT and get bank records, usually to discover if JWROS, TOD accounts, access to bank records of decedent, etc. I remember awhile back, someone posted authority that they believed there is no discovery allowed in probate w/o court order but can't find that old post.
Anyone have an opinion on this issue and how you approach needing records in a probate cause?
Dalynne Singleton
Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street / PO Box 1091
Snohomish, WA 98291
360.568.5065
360.568.8092 fax
dalynne at glgmail.com<mailto:dalynne at glgmail.com>
Website: www.glglawgroup.com<http://www.glglawgroup.com/>
Attorney/client meetings will be handled by teleconference or virtually whenever possible. If you would like to set a telephone conference, zoom, or in person meeting, please call or email one my paralegals selina at glgmail.com<mailto:selina at glgmail.com> or elle at glgmail.com<mailto:elle at glgmail.com>. My legal assistant can be reached at paige at glgmail.com<mailto:paige at glgmail.com>. Co-counsel Anna Thompson can be reached at anna at glgmail.com<mailto:anna at glgmail.com>.
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IMPORTANT/CONFIDENTIAL: This e-mail message (and any attachments accompanying it) may contain confidential information, including information protected by attorney-client privilege. The information is intended only for the use of the intended recipient(s). Delivery of this message to anyone other than the intended recipient(s) is not intended to waive any privilege or otherwise detract from the confidentiality of the message. If you are not the intended recipient, or if this message has been addressed to you in error, do not read, disclose, reproduce, distribute, disseminate or otherwise use this transmission, rather, please promptly notify the sender by reply e-mail, and then destroy all copies of the message and its attachments, if any.
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------------------------------
Message: 10
Date: Thu, 17 Aug 2023 23:24:03 +0000
From: Paul Neumiller <pneumiller at hotmail.com>
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Eminent Adult Protective Services Visit
Message-ID:
<MW3PR13MB3980D09DD87F373ECE920A46D21AA at MW3PR13MB3980.namprd13.prod.outlook.com>
Content-Type: text/plain; charset="us-ascii"
Got it. Thank you.
[cid:image001.jpg at 01D9D127.3AF16A90]
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Philip N. Jones
Sent: Thursday, August 17, 2023 2:23 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Eminent Adult Protective Services Visit
More than ten years ago, Jim Cartwright and I wrote an article on how to take steps during the planning process to avoid will contests after the client dies. The article was written under Oregon law, but I believe it is still valid and much of it would apply to the situation described in this string. Here is the link to that article:
Est_2011Oct.pdf (osbar.org)<https://estateplanning.osbar.org/files/2015/05/Est_2011Oct.pdf>
If the link doesn't work, just run a search on the Oregon State Bar Estate Planning and Administration Section Newsletter, October 2011 issue. I don't think you need to be a member of the OSB to access it.
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 Paul Neumiller
Sent: Thursday, August 17, 2023 2:07 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Eminent Adult Protective Services Visit
Thanks to all who respond, on and off-line.
[cid:image001.jpg at 01D9D127.3AF16A90]
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: Thursday, August 17, 2023 10:53 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Eminent Adult Protective Services Visit
That's a tough question.
If you are not in the room, your client might say something odd.
If you are in the room, APS might think you are a Svengali working on behalf of the evil wife.
Perhaps you should talk to the APS person first and get a sense of how professional/reasonable the APS person is. If they seem OK, stay out.
Very hard to say.
Do you also represent the wife? I hope not.
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 Paul Neumiller
Sent: Thursday, August 17, 2023 10:37 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Eminent Adult Protective Services Visit
Listmates: Waaaay out of my wheel house. Recently remarried elderly client meets with me to change his estate planning. He wants to provide for his new wife (not everything, just a portion of his estate). Adult children from a previous marriage (and trust babies) from CA have called the local Adult Protective Services and APS want to talk to my client (APS left a business card on my client's front door last night). Trust babies have an attorney in CA who argues to me that some documents are forged and that my client is senile and that the new wife is taking advantage of my client. I personally feel the client is competent. My initial reaction is for the client to meet with APS and answer whatever questions APS has. APS will probably want to interview my client without the new spouse in the room. Should I be in the room?
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Message: 11
Date: Thu, 17 Aug 2023 23:24:33 +0000
From: Jennifer L White <jen at appletreelaw.com>
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Eminent Adult Protective Services Visit
Message-ID:
<MW4PR14MB46047598C7F5D5C08F33EC82C01AA at MW4PR14MB4604.namprd14.prod.outlook.com>
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Excellent advice, Phil. For WA, just substitute Dean v Jordan for Oregon's 7 factors. Also, when getting a Dr letter confirming competency, I always schedule the Will signing for immediately after their Dr appointment.
Paul, your original post didn't say, but did these folks have a Prenup? If so, does it impact the Will you are being asked to draft?
Your testator might consider making some annual exclusion gifts to the adult kids contemporaneously with the new Will signing. Later, if they contest, you can point out they thought he was mentally competent enough to send them a check, which they took, but now they are contesting the Will?
Jennifer L. White, Esq.
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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 Philip N. Jones
Sent: Thursday, August 17, 2023 2:23 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Eminent Adult Protective Services Visit
More than ten years ago, Jim Cartwright and I wrote an article on how to take steps during the planning process to avoid will contests after the client dies. The article was written under Oregon law, but I believe it is still valid and much of it would apply to the situation described in this string. Here is the link to that article:
Est_2011Oct.pdf (osbar.org)<https://urldefense.proofpoint.com/v2/url?u=https-3A__estateplanning.osbar.org_files_2015_05_Est-5F2011Oct.pdf&d=DwMFAg&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=kDcM-fraYQNOZ1rCslLoMSSRXJQXmQVvRJbE6ymQGho&m=BazX1dY2W_zMEZh6ZILv8_YbIQ_Ag1TZmXlIohSS4zWqUxUUhCewIDwZtmIa63G3&s=vZUURwecOrd6sn7Tzqudse3wc8Sj6RD1b5JiQS79LIA&e=>
If the link doesn't work, just run a search on the Oregon State Bar Estate Planning and Administration Section Newsletter, October 2011 issue. I don't think you need to be a member of the OSB to access it.
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 Paul Neumiller
Sent: Thursday, August 17, 2023 2:07 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Eminent Adult Protective Services Visit
Thanks to all who respond, on and off-line.
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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: Thursday, August 17, 2023 10:53 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Eminent Adult Protective Services Visit
That's a tough question.
If you are not in the room, your client might say something odd.
If you are in the room, APS might think you are a Svengali working on behalf of the evil wife.
Perhaps you should talk to the APS person first and get a sense of how professional/reasonable the APS person is. If they seem OK, stay out.
Very hard to say.
Do you also represent the wife? I hope not.
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 Paul Neumiller
Sent: Thursday, August 17, 2023 10:37 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Eminent Adult Protective Services Visit
Listmates: Waaaay out of my wheel house. Recently remarried elderly client meets with me to change his estate planning. He wants to provide for his new wife (not everything, just a portion of his estate). Adult children from a previous marriage (and trust babies) from CA have called the local Adult Protective Services and APS want to talk to my client (APS left a business card on my client's front door last night). Trust babies have an attorney in CA who argues to me that some documents are forged and that my client is senile and that the new wife is taking advantage of my client. I personally feel the client is competent. My initial reaction is for the client to meet with APS and answer whatever questions APS has. APS will probably want to interview my client without the new spouse in the room. Should I be in the room?
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