[WSBAPT] Estranged Heirs Question

Fri Feb 21 09:23:40 PST 2025

I think I’m making a practical call where there’s no definitive answer, and risks/burdens related to either path, so I would prefer to advise the client of the choices and let them choose.

In my opinion, the small-estate affidavit statute can be interpreted to mean that the existence of a Will, even if not proved, means that heirs at law are not “successors” and do not need to receive notice. That’s a reasonable reading of the statute, due to the use of “or” vs. “and/or” in the same statute, which would typically mean a distinction between conjunctive and disjunctive “or.” However, the standard probate notice statute, RCW 11.28.237, definitely requires notice to both heirs at law and beneficiaries under a Will. And the same policy reasons there, also apply to why we would want to give notice to heirs at law in a small-estate affidavit situation. So the discrepancy between the statutes is hard to understand.

Given the ambiguous reading of the statute, I’d leave it up to the client how to handle it. If the Will is transparently solid on its face—drafted by a lawyer, not even a faint concern about competence or undue influence, consistent with the decedent’s relationships during life, etc.—I think I could advise a client to take a position that 11.62 doesn’t include heirs at law within the definition of “successors” if there is a Will, and don’t bother going to the expense of tracking down long-estranged relatives in order to give notice. I would of course advise the client that this leaves open the risk of a later will challenge, but if the client balances that risk against the expense/effort of finding long-estranged relatives and decides not to give notice, I think the law as written allows that position.

But if the Will is questionable at all, or if the addresses of the heirs at law are already known, it’s generally easier to give notice. That flushes out any potential dispute and gives the best protection to the client. If there is a major concern, I’d advise doing an adjudication of testacy, as I indicated; that is definitive because it’s the only method short of full probate that triggers the 4-month Will contest deadline. The problem with giving heirs at law notice of a small estate affidavit is, even if you do so, it doesn’t trigger the Will contest deadline because there has been no actual adjudication of the Will.

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 Sarah McCarthy
Sent: Friday, February 21, 2025 8:11 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Estranged Heirs Question

This is very interesting! (And timely! Today I'm mailing notice under RCW 11.28.237(1) to two first cousins of the decedent, intestate "heirs," who will get nothing under the Will, in order to get them within the 4-month will contest period.)

If I read Eric's response correctly, it sounds like Eric (whose erudite, well-reasoned, and well-cited input is ALWAYS reliable!!) thinks that when we have a Will, we do NOT need to send out any notice of appointment to the people who would have been the intestate "heirs" but who were not included in the Will?

Eric, did I read this right?

Do folks NOT read RCW 11.28.237(1) as requiring notice of appointment to the people who would have been the intestate "heirs," even if they are not beneficiaries under the Will?  That's always been my reading of that notice statute, and I always send notice to "heirs" even if they aren't included in the Will.  Thus I agree with this comment from Jim:
Over the years, when petitioning for probate, I have named and provided notice to beneficiaries and heirs, assuming the heirs can be located, even when heirs are not named as beneficiaries in Decedent’s Will.  . . .  My theory has always been that, even if not named as beneficiaries, heirs should receive notice, with the thought that an heir might want to challenge a will.

I agree with Jim - My concern would be that we don't ever have finality concerning the 4-month will contest period if the disinherited intestate "heirs" were not provided notice.

I don't have a case ready to hand that clearly says this, but it just makes sense -- I assume that the people who would have been the intestate "heirs" would certainly be considered "interested parties" for purposes of the will contest statute, even if they aren't included in the Will.

This rule also seems to underlie In Re Estate of Toth, 138 Wn.2d 650, 981 P.2d 439, 443 fn.2 (1999), even though the opinion doesn't specifically say that.  Toth says this in Footnote 2: "When an interested party is not served with notice of the will's admission to probate, the statute of limitation for will contests is tolled. Hesthagen v. Harby, 78 Wash. 2d 934<https://law.justia.com/cases/washington/supreme-court/1971/39916-1.html>, 481 P.2d 438<https://law.justia.com/cases/washington/supreme-court/1971/39916-1.html> (1971); In re Estate of Walker, 10 Wash. App. 925, 521 P.2d 43 (1974)." (emphasis added) Though - neither of the cases that Toth cites are clearly on point with my premise --   Hesthegan was an intestate estate where heirs who were fully entitled to receive assets were never given notice -- obviously egregiously incorrect -- and Walker was a testate, and involved 16 devisees of specific bequests in the Will who weren't given the notice -- also, obviously incorrect.

In Toth, there was a Will, and the 20-day notice WAS mailed to the decedent's "relatives" :  "In accordance with RCW 11.28.237, Cooke mailed notice of his appointment as personal representative of the estate to Toth's relatives, Julia Webb, Bobbi Szabo, and Ilona Webb (the Webbs)." (emphasis added).  Fortunately the court of appeals opinion in Toth clarified that these "relatives" were NOT included in the Will. Thus, they were never any more than disinherited intestate "heirs."

If sending the notices to these "heirs" who were not included in the Will had been totally unnecessary, I would assume that the court in Toth would have at least mentioned that, in dicta, or in a footnote.... Thus, I read Toth as supporting my practice of sending the notice to disinherited heirs, so as to trigger application of the 4-month will contest period to them, and so as to establish total finality as to the Will once the 4 months pass.

Would love to hear if others disagree, or have other authority on this!

Thanks!

Sarah O’Farrell McCarthy

(Pronouns: she / her)
Attorney, Partner | Kelly, Arndt & Walker, Attorneys at Law, PLLP
P.O. Box 290 | 6443 Harding Avenue | Clinton, WA  98236

(Located on Whidbey Island, Island County, Washington)
Phone: (360) 341-1515 | Fax: (360) 341-3272
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On Thu, Feb 20, 2025 at 4:24 PM Eric Nelsen <eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>> wrote:
That is a great question and not one I have dealt with before. I agree with your reading of the statute; the “or” in RCW 11.62.005(2) appears to be disjunctive, meaning you give notice to beneficiaries under a Will, or to heirs if there is no Will, but do not have to notify both if there is a Will—even if the Will has not been formally entered for probate. This interpretation is reinforced by the use of “and/or” in two other locations of that section, which contrasts with the “or.” The difference must be meaningful, so I think the only interpretation is the “or” is disjunctive.

Personally, I think the best route is to give the client two options and compare the risks and benefits, and let the client choose the route.

  1.  Small Estate Affidavit, file the Will for permanent record, don’t give notice to heirs at law, get the funds relatively quickly. The risk here is that an estranged child comes and files to have the Will rejected as invalid. If the Will were eventually found to be invalid, the client could be sued to disgorge the funds. If the Will is solid and there’s no realistic possibility of a challenge actually succeeding, this is probably a very small risk.

  1.  Petition for Order of Adjudication of Testacy without appointment of PR, per RCW 11.20.020(1), and give notice to the intestate heirs per RCW 11.28.330 and RCW 11.28.340, wait four months for Will contest period to end, then get the funds. The burden here is mainly the time and expense in doing the longer process, in order to eliminate the small risk under option #1.

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 James Dolan
Sent: Thursday, February 20, 2025 3:48 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Estranged Heirs Question

Colleagues:

When petitioning to probate a Will, or when using a Small Estate Affidavit, do you need to name heirs at law, or just beneficiaries?

Over the years, when petitioning for probate, I have named and provided notice to beneficiaries and heirs, assuming the heirs can be located, even when heirs are not named as beneficiaries in Decedent’s Will.  Unless I am missing something, I don’t see anything in RCW 11 that specifies who must be named in the petition or who receives notice.  I have had disagreements with other attorneys about this.  My theory has always been that, even if not named as beneficiaries, heirs should receive notice, with the thought that an heir might want to challenge a will.  (For example, if a ne’er-do-well unduly influences a Testator to bequeath everything to the ne’er-do-well, notice should go out to heirs even if they aren’t named beneficiaries in case they want to challenge.)

When submitting a Small Estate Affidavit, RCW 11.62 requires prior notice to “That person or those persons who are entitled to the claimed property pursuant to the terms and provisions of the last will and testament of the decedent or by virtue of the laws of intestate succession.” Emphasis added.

The reason for this question is I am dealing with the very modest ($28,000 in the bank) estate of a decedent who left his estate to his wife of 11 months, per his Will.  The Will is legit, and it makes sense that everything goes to his wife.  (When we were drafting his estate planning documents, he was either unable or unwilling to name his wife as the TOD or POD beneficiary on his bank account, as I suggested, or maybe he just forgot.)  He was also the father of four very estranged children who had no contact with him for decades.  I planned to use the Small Estate Affidavit, but no one has any idea where these estranged children might be, and it doesn’t make sense to hire an heir hunter.  This might be a stupid question but do I need to name the children in the Small Estate Affidavit , or just name the sole beneficiary, the spouse?  Same question if we were to go the probate route.

Asking for a friend. 😊

Jim Dolan

=========================

Jones Butler Dolan, PS
P.O. Box 458
10027 SR 532
Stanwood, WA 98292
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