[WSBAPT] criminal restitution

[John J. Sullivan, Esq.]

I read a case quite a while ago, around 2007. If I recall correctly, it was
a WA Appellate case out of Yakima. I was interested in it because it
involved the procedure for extending a ten year judgment a second ten years.


 

The reason I mention that is restitution ordered by a court in a criminal
case is reduced to a judgment. I would think that would make your decedent
(and thereafter his probate estate) a judgment creditor, making the judgment
an asset of the probate estate. There are more than one way to dispose of
the judgment asset. If the daughter was still in line to actually receive an
inheritance it might make perfect sense to treat the discharge as part of
her distribution. But if, under OR law she is treated like under our "Slayer
Statute" as having predeceased the client because of financial exploitation,
I do not see a legal basis to offset the debt, because the judgment debtor
is receiving nothing to offset it against. Distributing it to her children
may be the practical equivalent of offset because they won't take action to
enforce it, but the judgment still stands and would affect her creditability
(if she has any).  I think your instincts are correct that the judgment is
like any other asset. There's no reason it can't be distributed to the other
adult children of the decedent. Theoretically it may also be possible to
sell it at a discount to a collection agency I suppose. If you distribute it
to the other children, the issue will be how to value it. I'm not a
bankruptcy expert, so I would wonder whether she could discharge the
judgment. Not sure about that. 

 

John J. Sullivan

 

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>
On Behalf Of Philip N. Jones
Sent: Tuesday, March 14, 2023 2:30 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] criminal restitution

 

A colleague of mine has an Oregon probate for a decedent whose daughter was
criminally convicted of various financial abuse crimes and ordered to pay
restitution to the decedent (who was then alive) through a Washington
superior court.  The decedent has now died, and we are trying to determine
if the unpaid balance of the restitution is an Oregon probate asset that
could be offset against the daughter's inheritance.  The situation is
complicated by a statute that prohibits her from inheriting, so her share of
the estate will pass to her adult children.  If we offset the restitution
debt against her share of the inheritance passing to her children, then she
will end up getting benefit (debt relief) from her father's estate.  So we
are thinking that the estate will be divided among the family members other
than the daughter, and the daughter will still owe the debt, which will be
assigned to the other family members as part of their inheritance.

If any of you have thoughts (or cites) pertaining to this weird situation,
please let me know, either online or offline.

Thank you,

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

 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20230314/14756b21/attachment.html>