[WSBAPT] Omitted Child Issue and Potential Escheat

Tue May 20 17:01:49 PDT 2025

Could there be a case for legal malpractice / practicing without a license
against the hospice worker and their employer in favor of the disabled
child?

*Mark C. McClure* *| *
*Managing Attorney *Law Office of Mark McClure, PS

*"Why Retire With Debt?"*1103 West Meeker Street, #101
Kent, WA 98032

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*From:* wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>
*On Behalf Of *David Faber
*Sent:* Tuesday, May 20, 2025 4:36 PM
*To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
*Subject:* [WSBAPT] Omitted Child Issue and Potential Escheat

Good afternoon list,

I have a doozy...

Decedent, while dying of cancer, wrote her Will on a form given to her by a
hospice worker/nurse. Decedent had two children: (A), who is a homeless
drug addict, and (B), who is developmentally disabled, is dependent upon
public assistance, and lives in a group home. Decedent's Will contains no
reference to child A, describes child B as her "only family", appoints
Decedent's sister as Personal Representative, contains no specific gifts,
and leaves her residuary estate to "No one". According to the Decedent's
sister (my prospective client), the hospice worker instructed the Decedent
on how to fill out her Will with the stated goal of allowing the sister (as
Personal Representative) to distribute the entire estate into a Special
Needs Trust that the sister could write after the Decedent died. Lastly,
the net estate is probably worth about $380,000.00. Setting aside the
apparent brazen violation of RCW 2.48.180, I'm now trying to figure out how
to proceed, or if it makes any sense at all to proceed to probating the
Will.

Reviewing the Omitted Child statute (RCW 11.12.091), it appears to *only *apply
to a child born or adopted *after *the date of the Will and therefore A
doesn't have an omitted child claim (correct?). But then that means the
Will leaves the estate to "no one". My worry is that this effectively means
that the estate escheats. Has anyone encountered a situation like this or
have any thoughts that could result in the estate going to A and B as
intestate heirs? The next step after that will be figuring out a
self-settled special needs trust for B, but I'll cross that bridge if we
can find a way to even come to it...

Best,

David J. Faber

Faber Feinson PLLC

800 Polk Street, Suite B

Port Townsend, WA 98368
(360) 379-4110

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