[WSBAPT] Estranged Heirs Question

[Eric Nelsen]

Oy! Thanks for the compliment I think? :-)

Honestly, I hadn’t fully grasped the implications of the SEA process when there is a Will. The standard proof of Will process is completely bypassed, the Will is essentially assumed to be valid, and the people who might want to contest its validity aren’t required to receive notice. I guess that’s a public policy decision, to just dispense with the whole thing if less than $100,000 is at stake.

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 James Dolan
Sent: Friday, February 21, 2025 9:49 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Estranged Heirs Question

Eric:

First, thanks, as always, for taking time to respond to a question.

It is interesting that you discuss two paths, because I have actually travelled part way down each path.

Regarding the SEA, we are fortunate to be working with a financial institution that understands and accepts SEAs, as I’m sure many of us have encountered institutions that don’t understand them.  The SEA is/was my preferred method in this particular case, and I began drafting it, until I got hung up on the heirs thing.  Upon review, I do agree that the “or” as related to successors means (either) beneficiaries in a Will ,or, in cases of intestacy, heirs at law.

We also have probate pleadings, signed, locked and loaded, although I had not considered an Order of Adjudication of Testacy.  Before launching the probate, I wanted to take a shot at getting learned opinions from other probate attorneys regarding the SEA.

Based on the responses, I plan to go with SEA, naming the Will beneficiaries, not the heirs, as the “successors” in the SEA, and file the Will as you suggested.  If I run into any problems, my defense will be, “Eric said it is OK.” 😊

-jbd-

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
Sent: Thursday, February 20, 2025 4:24 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Estranged Heirs Question

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
(tel) 360-336-2939
(fax) 360-336-2949

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