[WSBAPT] Omitted Child Issue and Potential Escheat

Wed May 21 12:40:29 PDT 2025

We don’t have harmless error in Washington (which excuses flaws in execution formalities) but we do have correction of mistakes in trusts and wills https://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.125 (since 2013).

Professor Karen E. Boxx

University of Washington School of Law

Box 353020

Seattle, WA 98195-3020
206.616.3856
Sent from my iPad

On May 21, 2025, at 12:20 PM, David Faber <david at faberfeinson.com> wrote:

Thank you, all. This was very helpful to my thinking. Best, David J. Faber Faber Feinson PLLC 800 Polk Street, Suite B Port Townsend, WA 98368 (360) 379-4110 *** NOTICE: ATTORNEY CLIENT COMMUNICATION - PRIVILEGED & CONFIDENTIAL. This communication
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Thank you, all. This was very helpful to my thinking.

Best,
David J. Faber
Faber Feinson PLLC
800 Polk Street, Suite B
Port Townsend, WA 98368
(360) 379-4110

*** NOTICE: ATTORNEY CLIENT COMMUNICATION - PRIVILEGED & CONFIDENTIAL.  This communication may contain privileged or other confidential information. If you are not the intended recipient, or believe that you have received this communication in error, please do not print, copy, retransmit, disseminate, or otherwise use the information. Also, please indicate to the sender that you have received this communication in error, and destroy the copy you received.***

On Tue, May 20, 2025 at 6:21 PM Joshua McKarcher <josh at mckarcherlaw.com<mailto:josh at mckarcherlaw.com>> wrote:
This email is worth precisely what you’re paying for it, but if it helps, “great.”

IF Washington common law or judicial opinion provides similar rules to what the uniform probate code codifies, then this sounds like a mistake of fact, mistake of law, and mistakes of other things -- and thus a fundamentally invalid will not eligible for probate (at least as to property dispositions).

I’ve only ever (and recently) had this issue in Idaho, admittedly, which is a uniform probate code state. And, under Idaho law, ambiguity in the will would permit extrinsic evidence of testator intent.

In Washington statute, I “think” the only provision on point above is maybe RCW 11.12.230 re testator intent, to the degree you find case law applying it within some judge-defined bounds.

But, “gosh darn,” it sure seems like you’d need to have some of the other above law available to you even to GET TO testator intent as to meaning – such as an ambiguity on the face of the document that brings in extrinsic evidence?

I do not litigate these matters, honestly, so my recent Idaho excursion was fun but provided an acceptable (and lawful!) outcome after application of all these principles. So “it worked.”

You have some research and dot connecting to do. But perhaps the PR could apply for letters of administration in intestacy, without priority of appointment, submit the will for full disclosure, assert that it is not provable as a valid will, provide notice to both heirs, and let them argue otherwise or seek appointment if they wish to.

If nobody objects, they split the estate 50/50. If disabled child wants to argue the will disinherits unhoused child but somehow does not disinherit disabled child, well, “go right ahead.”

I suppose the court can decide if the Attorney General should have notice and a chance at arguing escheat . . . if he would? But I think once you dig further you’ll find that is plainly disfavored unless there are NO other heirs at all.

Alternatively, depending upon the common and judicial law you find, I suppose perhaps the will could be probated as making a valid appointment of PR (if it does even that properly) but INTERPRETED as having dispositive provisions that are invalid “at square one” as classic mistakes of fact and law, if Washington has those theories.

This alternative could get the PR appointed with a will that does nothing but provide appointment and some administrative provisions (maybe no bond? Maybe non-intervention powers?), but that results in intestacy – which may just be what public policy (and just our fundamental law of wills) requires in this situation.

Litigators with actual knowledge dissect me in response! I shall learn from you! 😉

Best, Josh

Joshua D. McKarcher
McKarcher Law PLLC
537 6th Street
Clarkston, WA 99403
(509) 758-3345
(509) 758-3314 (fax)
josh at mckarcherlaw.com<mailto:josh at mckarcherlaw.com>
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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 David Faber
Sent: Tuesday, May 20, 2025 4:36 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto: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

*** NOTICE: ATTORNEY CLIENT COMMUNICATION - PRIVILEGED & CONFIDENTIAL.  This communication may contain privileged or other confidential information. If you are not the intended recipient, or believe that you have received this communication in error, please do not print, copy, retransmit, disseminate, or otherwise use the information. Also, please indicate to the sender that you have received this communication in error, and destroy the copy you received.***
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