[WSBAPT] Nonintervention PR not keeping beneficiaries informed

[Carmen Rowe]

Dittoing both Paul (that I am not trying to be contrarian) and Eric (both
his comments about transparency avoiding problems, but also having
represented PRs fending off problematic requests, whether in nature or in
volume), I have to say that I come down on the side of none of these
general fiduciary duties giving rise to a claim for information. These are
about execution of the duties. If a PR did not execute the duties in
accordance with these principles, yes there is liability. But unless the
beneficiary has some role in executing one or another function, none of
this requires the procedural step of keeping people updated on each step
along the way.

On the issue of sale of property, for example - if the PR did not sell the
property for what someone thinks is a FMV, or there was some collusion that
harmed the beneficiaries (even collusion is not enough alone - say the PR
sold property to him/her/themselves, doesn't do it if beneficiaries not
harmed and is equivalent to an arms-length transaction). Good faith, care,
loyalty, impartiality to beneficiaries are all met if the end result is
correct.

On the flip side, consider a beneficiary that is constantly asking about
every step (seen it) ... that is constantly challenging steps (seen it) ...
whose nosiness about the sale comes about from intent to mess with it in
some way (seen it) ... constantly pushing to get their money ASAP and not
wanting to be patient to let the entire process play out (seen it) ... are
desparate to push for a partial distribution when a major asset sells
regardless of other factors that may be in play for the PR (seen it) ...
etc. Your client may be fair and reasonable about it all - but surely you
can imagine other scenarios where people are not. Sometimes just disclosing
information part way through can cause unwarranted issues that then drive
up costs or complications or delay - and now by catering to one beneficiary
you harmed the others, and violated rule #4.

Or: perhaps your client's requests are valid, but if the PR has to
communicate with your client, they have to send it to the other
beneficiaries (impartiality), and one of *them *may be the ones the PR is
worried about.

If there were concerns, I suppose you could bring a motion asking the court
to perform some form of advisory role (which is what you're asking, really,
just that court is giving the beneficiary the authority to do it), if there
is provable evidence that something hinky is going on and you want to
prevent a later harm.

But wouldn't that defeat the non-intervention powers? Seems with that level
of distrust you need to substantiate removal of the PR altogether.

Otherwise I think that in such an estate you are left with challenge to the
end result, and PR liability if they failed in these duties in execution.

Also consider statutory interpretation principles. When the statute
expressly laid out very precise, specific obligations of timing and subject
of notices and communications to beneficiaries, and that it would have been
very easy to put in some language about "reasonable" or otherwise
occasional status communications in-between but they did not, I think you
would be hard pressed to say that there is an obligation under general
rules of duty that are really going to executing the estate such that the
end result is fair, absent a case that interjected that in the common law.
Plus, the deceased opted for non-intervention, an option expressly afforded
under statute.

I empathize with your client - but I think they are facing the limitations
of a statutory structure set up to ensure fairness in every estate, and to
every PR, not just a kind and reasonable beneficiary.

Carmen Rowe



Phone: (360) 669-3576 (direct cell)
Email:  Carmen at GryphonLawGroup.com

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From: Marcus Fry <MFry at hawleytroxell.com>
>
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Nonintervention PR not keeping beneficiaries
        informed
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A personal representative owes the following fiduciary duties (RCW
11.104B.050 as well as common law):

  1.  Duty of good faith;
  2.  Duty of care- utilize the skill, judgment and diligence with would be
employed by an ordinarily cautious and prudent person in the management of
her own business affairs;
  3.  Duty of Loyalty;
  4.  Duty to administer an estate impartially towards all beneficiaries
unless Will instructs otherwise.

Just to be clear, I represent a beneficiary who has requested information
(both by filing special request for proceedings and directly via counsel)
regarding the status of the sale of the property and other transactions and
the PR has responded with silence or disclosure after the transaction is
completed.  I believe this violates one or more of the above duties,
imposed on even a nonintervention PR.
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