[WSBAPT] 28yo unprobated will vs 28 years adverse possession - please speculate!

Thu Dec 14 11:42:19 PST 2023

Extremely short reply like most normal listserv participants send: What about RCW 11.20.010?

Longer Josh reply that maybe only Eric will care to read ultimately, if even him, but alas:

Eric, I’m sorry but I don’t think most of your paragraphs pasted below (immediately above my signature) in italics from your earlier email is or can be right if your final "if clause" applies: "But what if Z was the named executor in the will they filed but elected not to probate?"

I feel like this email is stating the obvious, but I do not see anyone else stating what I am, except Phil Jones refers to fiduciary duties. And I think he means Z’s duties if PR and possessor of will to actually execute the thing, not take all the property for Z’s self. If everyone agrees, then my entire email below is pointless. But I sure don’t read your (Eric’s) two paragraphs to “match” Phil’s point (or mine fleshed out below).

The summary of my analysis below is that our supreme court would not reward Z for “filing” but not “probating” and “executing” a will that named Z as executor, that Z had possession of, that left property to Y (or A or Q) – and property Z then possessed for 2 or 12 or 28 years.

I believe that once discovered, his basic “step one” failure to EXECUTE (much less probate) the will would make Z liable for damages simply under a reasonable (even if a “first instance”) interpretation of RCW 11.20.010: Duty of custodian of will—Liability. (wa.gov)<https://app.leg.wa.gov/RCW/default.aspx?cite=11.20.010>.

Indeed, unless I am missing something fundamental, I think any state supreme court (and lower courts on the way to that Court) would say something akin to “we have always thought this situation to be the point of this statute.”

Here’s my longer version:

A nominated executor holding a will has a duty to probate and execute the will, not to record it or frame it or mail copies of it or publish an image of it in a newspaper.

And of course the nominated executor who possesses the will has fiduciary duties to the named beneficiary: namely, to deliver the devised property to them after administering the estate. Who cares if he shows or tells him about the will? That’s not the duty. The duty is to execute the will and then report to the court that he has done so to close the probate.

Anyone damaged by his failure to act has a claim for damages. Just as a damaged party has a claim for damages against a third party (who is not the PR) who holds a will and doesn’t deliver it to the nominated PR to be filed/probated/recorded/pick your term.

(I won’t go on about it, but I actually think a TEXTUAL reading of all of 11.20 makes it extremely easy for an appellate court to provide an interpretation that contemplates Z in such a case not simply “delivering the will to the court as though the COURT is going to ensure it’s probated” under some hypertechnical reading of 11.20.010, but that surrounding text in phrases such as “The record of any will made, probated and recorded as herein provided...” in 11.20.060 at least “contemplate” that the loose reference to “filing” a will does not excuse the PROBATE or EXECUTION of a will by the possessor who is the nominated PR who then effectively steals the testator’s estate.

I see no need to resort to any other area of law. If the damaged party is suing at year 2, 12, or 28 -- and can still prove damages -- what on earth public policy is served by overlaying artificial equitable theories to reward Z?

I find it extremely hard to believe a state Supreme Court wouldn’t find a way to impose liability on Z under your facts. It’s not just a sibling stealing a sibling’s inheritance. It’s a nominated PR taking custody of a will, “filing” it cutely, not probating it, certainly NOT executing it, and then sitting quietly hoping nobody ever find the “filed” will.

Both are wrong; but the latter is wrong for many additional reasons of fiduciary and statutory duty inapplicable in the former.

For all of the above reasons, I think that I with some trepidation must respectfully disagree with nearly every word of the below two paragraphs.

(Aside: I will avoid reigniting a fierce chain a year or so ago addressing the point raised in the second sentence of your first paragraph, on which I was impliedly compared to some fraudster who avoided paying parking garage charges. As others on that chain obviously also believed, I firmly assert that there are some reasonable actions a nominated PR who is timely en route to court properly to probate a will, who is facing no disputes and sees no improprieties afoot, may – indeed MUST – properly take, with the obvious exception of forging or endorsing a check or using the legal phrase “personal representative” when they are not yet formally. I still think that everyone in the universe understands some of those pre-appointment actions routinely are and may be “ratified” upon the person’s formal appointment (or that they will detail to the eventually appointed PR and suffer the consequences of having done IF they really turn out to be wrongful).):

Re legal duties of Z, my understanding is that no, Z has no duties at all under a will that hasn’t been probated—except to file it in the court of appropriate jurisdiction if Z learns of X’s death and Z has custody of the original. An executor named in a will has no duties, and in fact is expressly not authorized to act, until the will has been probated and they have qualified by filing oath (and bond if required).

So far as I’m aware, even if Z was appointed and qualified, Z still has no duty to tell anybody the contents of the will. Just mail the Notice of Appointment and Pendency of Probate to all heirs, legatees, devisees, etc., after performing reasonable diligence to obtain mailing addresses.

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<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> on behalf of Eric Nelsen <eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>>
Sent: Wednesday, December 13, 2023 5:18 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] 28yo unprobated will vs 28 years adverse possession - please speculate!

Hi Andrekita—Facts have been altered to protect confidentiality but the scenario gets at some genuine issues I am grappling with. Glad you like it!

Re legal duties of Z, my understanding is that no, Z has no duties at all under a will that hasn’t been probated—except to file it in the court of appropriate jurisdiction if Z learns of X’s death and Z has custody of the original. An executor named in a will has no duties, and in fact is expressly not authorized to act, until the will has been probated and they have qualified by filing oath (and bond if required).

So far as I’m aware, even if Z was appointed and qualified, Z still has no duty to tell anybody the contents of the will. Just mail the Notice of Appointment and Pendency of Probate to all heirs, legatees, devisees, etc., after performing reasonable diligence to obtain mailing addresses.

One of the reasons that it’s best for a testator to truly trust the person nominated as Executor.

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: Andrekita Silva <ak at seattle-silvalaw.com<mailto:ak at seattle-silvalaw.com>>
Sent: Wednesday, December 13, 2023 4:54 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Cc: Eric Nelsen <eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>>
Subject: Re: [WSBAPT] 28yo unprobated will vs 28 years adverse possession - please speculate!

Law Office of
F.ANDREKITA SILVA
_______________________________________________________

December 13, 2023

Eric,

If Z was named the PR in the Will, wouldn’t he have some fiduciary obligation to have done more than just file the Will? Wouldn’t Z have had the obligation to communicate to Y that there was a Will and that the home was devised to Y? Begging the questions: What was Y's response?

Anyway, I don’t think we can cheat and pretend NO communication.

Unless there were other assets or unless Y is disabled and Dad was trying to provide for an adult child who might not be able to provide for himself, it seems really weird to me that Dad would have nominated Z as PR but given the house to Y.

Is this a real case or are you pulling our leg? Cuz this is a good one!

andrekita
Law Office of F. Andrekita Silva
1325 Fourth Avenue, Suite 940
Seattle, Washington 98101-2509
206-224-8288
www.seattle-silvalaw.com<http://www.seattle-silvalaw.com>

On 2023-12-13 13:31, Eric Nelsen wrote:
Ooh, that’s a good one. I’ve wondered how RCW 4.16.020(1) and RCW
11.04.250 interact, and I haven’t found any case law.

RCW 4.16.020(1) is the ten-year statute of limitations that runs
against persons out of possession such that “no action shall be
maintained for such recovery unless it appears that the plaintiff, his
or her ancestor, predecessor or grantor was seized or possessed of the
premises in question within ten years before the commencement of the
action.”

RCW 11.04.250 says that when a person dies, “his or her title shall
vest _immediately_ in his or her heirs or devisees, subject to his or
her debts, family allowance, expenses of administration, and any other
charges for which such real estate is liable under existing laws.”
But subject to divestment by a duly appointed PR, and also “no
person is deemed a devisee until the will has been probated.”

Case law does say that probating a will always relates back to date of
death, so the devisee is retroactively deemed to have
“immediately” vested as of date of death.

So, what result?

     * If Y probates the will, they become sole owner of the property
retroactive to date of death, and now suddenly Z’s 28 years of
occupancy is retroactively recharacterized as “hostile” since date
of death, adversely possessing against Y. Y receives nothing?
    * If Y doesn’t probate the will, maybe Z hasn’t accomplished
ouster, so they remain 50-50 owners? So Y cannot receive the entire
property as the will contemplates.

Does that mean that effectively, if real property is in someone’s
possession for 10 years after date of death and the decedent’s will
is probated _after_ that, then any gift of the real property in the
will cannot be made effective because the possessor will have
adversely possessed against it?

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: David Moe <davidmoe at maplevalleylaw.com<mailto:davidmoe at maplevalleylaw.com>>
Sent: Wednesday, December 13, 2023 12:50 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Cc: Eric Nelsen <eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>>
Subject: RE: [WSBAPT] 28yo unprobated will vs 28 years adverse
possession - please speculate!

I’ll bite with my speculation:

Where Y and Z are heirs at law of X, given lack of probate, Z would
need to prove “ouster” of Y to satisfy the “hostility”
element.  Without probate of the will, child Y and child Z are heirs
at law and co-tenants.  Clear, unequivocal, notice to the
“ousteree” is required. I’m guessing that Y’s elevator has
never risen all the way to the top floor.  Much more than exclusivity
of possession  is required to commence and continue running of the
10-year statute against a co-tenant in that circumstance.

David Moe Attorney, P.S.

Telephone:  425-432-1277

Fax:  425-432-1280

23745 225th Way SE, Suite 108

Maple Valley, WA 98038

Email:  davidmoe at maplevalleylaw.com<mailto:davidmoe at maplevalleylaw.com>

CONFIDENTIALITY NOTICE:   This communication is intended for the sole
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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 Brent Williams-Ruth
Sent: Wednesday, December 13, 2023 11:58 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] 28yo unprobated will vs 28 years adverse
possession - please speculate!

Would the adverse possession claim be defeated because of the fact
that it was done with permission. Therefore failing one of the
essential elements of hostility?

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

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sent to the following address: PO BOX 3319; Federal Way, WA 98063

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e-mail / website [1<http://www.williams-ruthlaw.com/>] / facebook [2<http://www.facebook.com/bwrlaw>] /

On Tue, Dec 12, 2023 at 5:21 PM Eric Nelsen
<eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>> wrote:

What happens if somebody’s will, in the public record but not
probated, is completely ignored for decades?

X has a will leaving house to child Y, leaving nothing to child Z. X
owns a house.

X dies, and the will is filed for permanent record but no probate
commenced.

Z moves into the house immediately after X dies.

Y does nothing for, let’s say, 28 years.

Who wins ownership of the house? Z under 10-year adverse possession
rules? Or Y if the will is, after 28 years, finally presented for
probate?

Assume no communication between Y and Z, so no fair evading the
question by arguing maybe Z held by Y’s permission or some such.

I’m guessing Z does, because adverse possession tends to override
all other interests. _But what if Z was the named executor in the
will they filed but elected not to probate?_

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>

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